[Federal Register Volume 60, Number 21 (Wednesday, February 1, 1995)]
[Rules and Regulations]
[Pages 6036-6039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2495]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 950111010-5010-01; I.D. 103194B]


Prohibition on the Intentional Lethal Take of Marine Mammals in 
Commercial Fishing Operations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: The Marine Mammal Protection Act Amendments of 1994 
established in section 118 a new management regime for the taking of 
marine mammals incidental to commercial fishing operations. Among other 
things, section 118 prohibits the intentional lethal taking of marine 
mammals in the course of commercial fishing operations. In partial 
implementation of section 118, NMFS amends the interim exemption 
currently in effect under section 114 to make the prohibition on 
intentional lethal takings fully applicable to all commercial fishing 
operations. All other provisions of the interim exemption remain in 
effect until superseded by further regulations.

[[Page 6037]] EFFECTIVE DATE: March 3, 1995.

ADDRESSES: Chief, Marine Mammal Division, Office of Protected 
Resources, F/PR, National Marine Fisheries Service (NMFS), 1315 East-
West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Dean Wilkinson, Office of Protected 
Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

    On December 8, 1994, at 59 FR 63324, NMFS proposed a rule to 
prohibit the intentional lethal taking of marine mammals in the course 
of commercial fishing operations. The proposed rule provided an 
exception if such taking is imminently necessary in self-defense or to 
save the life of another person. The notice of proposed rulemaking 
requested comments and contained a discussion of the background for the 
proposed rule. The background is not repeated here.
    This rule implements section 118(a)(5) of the Marine Mammal 
Protection Act (MMPA). It prohibits the intentional lethal take of 
marine mammals in the course of commercial fishing operations. An 
exception is provided for an intentional lethal take imminently 
necessary in self-defense or to save the life of another person in 
immediate danger. If a marine mammal is killed in self-defense or to 
save the life of another person, a report must be made to the 
appropriate NMFS Regional Office within 48 hours after the conclusion 
of the fishing trip.
    In the notice of proposed rulemaking, NMFS announced that it 
intended to make January 1, 1995, the effective date for the final 
rule. In order to allow time to notify fishers, however, the effective 
date is delayed until 30 days after the date of publication in the 
Federal Register.

Comments and Responses

    Comments were received from the U.S. Fish and Wildlife Service, 
Carmel River Steelhead Association, the Center for Marine Conservation, 
Earth Island Institute, the Humane Society of the United States, Maine 
Aquaculture Association, Salmon for All, and 23 private individuals. 
Fifteen commenters supported the proposed rule. Thirteen commenters 
opposed the proposed rule. Two commenters neither supported nor opposed 
the proposed rule. Specific comments are addressed below:
    Comment: There is no compelling reason that this one provision of 
the section 118 amendment should be adopted at this time. This action 
is clearly in opposition to Congress' intent that the entire section 
118 amendment be adopted collectively.
    Response: There is nothing in the statutory language or in either 
the House or Senate Reports (House Report 103-439 and Senate Report 
103-220) that indicates that all of section 118 is to be implemented 
simultaneously.
    There is evidence that since the passage of the 1994 amendments to 
the MMPA, the intentional lethal taking of marine mammals has occurred 
at levels greater than historic levels. For example, one marine mammal 
rehabilitation facility reports that 31 California sea lions were 
admitted after being shot between May 1 and November 1, 1994. The same 
facility admitted a total of 37 pinnipeds that had been shot in the 8-
year period prior to 1992. An acceleration in the rate of intentional 
lethal takes over historic levels is contrary to the intent of Congress 
to prohibit the intentional lethal take of marine mammals in the course 
of commercial fishing.
    In addition, there have been indications that allowing the 
intentional lethal take of certain species may result in the 
intentional lethal taking of other species whose intentional lethal 
take is prohibited. Although it is not certain that fishers were 
responsible, an event in March 1993 illustrates this problem. In a 
relatively short period of time, 58 dead pinnipeds washed onto beaches 
on the central Washington coast. Nine of the animals were Steller sea 
lions. Of 34 animals that were fresh enough for examination, 32 had 
been shot including eight of the nine Steller sea lions--three of which 
were pregnant. The intentional lethal taking of Steller sea lions is 
prohibited under the MMPA, and the species is listed as threatened 
under the Endangered Species Act. It is possible that the similarity of 
Steller sea lions to other pinniped species, whose intentional lethal 
take is allowed, was responsible for individuals assuming that it was 
legal to kill them.
    Given the above, the availability of nonlethal means of deterring 
marine mammals from gear and catch, and the fact that section 118(a)(5) 
of the MMPA requires that NMFS implement the prohibition on intentional 
lethal takes of marine mammals in connection with commercial fishing by 
no later than September 30, 1995, implementation of the statutory 
provision at this time is warranted.
    Comment: The deadline for response to the proposed rule should be 
extended to 40 days. Fifteen days provides little opportunity to 
disseminate information to those who may be interested in commenting on 
the rule.
    Response: NMFS is implementing section 118(a)(5) of the MMPA. The 
statutory language is explicit, and NMFS has no discretion as to the 
substantive content of the rule. As indicated in the previous response, 
there is reason to believe that intentional lethal takings of marine 
mammals are occurring at levels above historic levels and that allowing 
the intentional lethal take of some species may result in the taking of 
threatened species. Given this, a 15-day comment period was deemed 
sufficient.
    Comments were received through day 27 from the date of the 
publication of the notice of proposed rulemaking, and all comments 
received were considered.
    Comment: Several commenters opposed to the rule noted that, 
particularly on the west coast, fishers had a significant amount of 
their catch taken by pinnipeds. They also noted that populations of 
harbor seals and California sea lions have increased substantially 
since the passage of the MMPA and that natural predators such as bears, 
wolves, and cougars are no longer present. Some commenters pointed out 
that west coast salmonid runs have been seriously depleted, and that a 
number of populations either have been listed under the Endangered 
Species Act or are being considered for listing. The commenters 
provided information that pinnipeds prey on such runs. Two commenters 
provided documentation of the number of steelhead and coho in the 
Monterey, CA area with scars and wounds that appeared to be caused by 
marine mammals.
    Response: As pointed out above, the statutory language does not 
provide NMFS with the discretion to allow the intentional lethal take 
of marine mammals in the course of commercial fishing operations other 
than to protect human life. The rule does not affect the ability of 
persons involved in such fisheries to use nonlethal deterrence methods.
    Other provisions of the 1994 amendments to the MMPA address this 
issues. Section 120(f) of the MMPA requires NMFS to prepare a report to 
determine whether California sea lions and Pacific harbor seals are 
having a significant negative impact on the recovery of salmonid 
stocks. Although NMFS has no discretion in this rulemaking, the 
information submitted on this issue will be provided to the individuals 
drafting this report.
    Further, sections 120(a) through (d) of the MMPA provide a 
procedure whereby a state may apply to NMFS to authorize intentional 
lethal take of individually identifiable pinnipeds [[Page 6038]] which 
are having a significant negative impact on the decline or recovery of 
salmonid stocks that have been listed under the Endangered Species Act 
or are approaching threatened or endangered species status. If 
authority to intentionally lethally take individually identifiable 
pinnipeds is granted, section 120(c)(4) requires that the taking be 
performed by Federal or state agencies, or by qualified individuals 
under contract to such agencies. However, it does not provide NMFS with 
the discretion to authorize intentional lethal taking in the course of 
commercial fishing operations.
    Comment: Marine mammals that have learned to raid nets for their 
food can be extremely aggressive. Protecting oneself from threatening 
marine mammal behavior should not place the fisherman or woman in 
violation of the law.
    Response: The rule contains an exception to the prohibition on 
intentional lethal takes for circumstances when the killing of a marine 
mammal is imminently necessary in self-defense or to save the life of 
another person in immediate danger. If a marine mammal is taken under 
such circumstances, the individual involved is required to report the 
taking to the appropriate NMFS Regional Office within 48 hours of the 
conclusion of the fishing trip.
    Comment: It should be noted in the preamble to the rule that the 
section 101(c) exception allowing intentional lethal take to protect 
human life also provides the Secretary of Commerce (and for species 
under the jurisdiction of the Department of the Interior, the Secretary 
of the Interior) the authority to seize and dispose of any carcass.
    Response: As part of the implementation of the 1994 amendments to 
the MMPA , NMFS intends to propose specific regulations to cover the 
section 101(c) exception. Those regulations will incorporate the 
provision allowing, but not requiring, the Secretary to seize and 
dispose of any carcass. As the commenter noted, this provision also 
applies to commercial fishing operations, and the point is well taken. 
Because of the nature of fisheries, such animals may never come into 
the possession of a fisher or may be discarded before a fishing trip is 
completed. In instances when a carcass is retained, the Secretary has 
statutory authority to confiscate and dispose of it. Because such 
instances are likely to be uncommon, language will not be added to this 
regulation, but will appear in the more generic regulation implementing 
the section 101(c) exception for intentional lethal taking to protect 
human safety.
    Comment: The draft stock assessment sets potential biological 
removal (PBR) for western north Atlantic harbor seals at 864 animals. 
The small number of animals currently taken by intentional means to 
protect aquaculture facilities will have a negligible impact on the 
stock.
    Response: With the exception of the section 101(c) provision noted 
above, the MMPA states that the intentional lethal taking of marine 
mammals in the course of commercial fishing operations is prohibited. 
Therefore, the question of whether the lethal removal of a specified 
number of animals is beneath the PBR level is irrelevant. The concept 
of PBR was developed in order to assist in managing incidental, i.e., 
unintentional, taking of marine mammals in commercial fisheries.
    Comment: The Gulf of Maine Pinniped-Fishery Interaction Task Force 
mandated under section 120(h) has not been set up yet. The Task Force 
might recommend intentional lethal take as an option. In addition, the 
guidelines for nonlethal deterrence are not yet in effect.
    Response: NMFS has made initial contacts concerning members of the 
Task Force, and the Task Force should be formalized by the time that 
this rule becomes effective. Nevertheless, the Task Force report is not 
due until the end of April 1996. Even if the Task Force were to 
recommend that intentional lethal takes be allowed, a statutory change 
would be required before such a recommendation could be implemented. 
Similarly, the draft guidelines on nonlethal take should be available 
soon. Although the guidelines are not yet in place, the section 114 
interim exemption and its authorization for nonlethal deterrence remain 
valid. Until deterrence guidelines are issued, participants in 
commercial fisheries may continue to use all nonlethal deterrence 
methods that are currently used.
    Comment: The promulgation of this regulation will result in the 
loss of millions of dollars to the salmon aquaculture industry because 
of harbor seal predation on salmon in net pens. NMFS cannot justify the 
statement that the proposed rule ``would not have a significant impact 
on a substantial numbers of small entities.''
    Response: Since 1989, owners of salmon net pens have been subject 
to the requirement contained in the 1988 amendments to the MMPA (Pub. 
L. 100-711) that all lethal takes--whether intentional or 
unintentional--be reported to NMFS within 10 days. During that period, 
only three intentional lethal takes have been reported by participants 
in the salmon aquaculture industry--one harbor seal in 1991 and two 
gray seals in 1993. While NMFS recognizes that there may have been a 
degree of underreporting, there is no documentation of a level of 
interaction between harbor seals and net pens of the magnitude that 
would be necessary to support the argument that prohibition of 
intentional lethal takes would result in the loss of millions of 
dollars to this fishery.
    Comment: Two comments were received concerning gear practices. The 
comments dealt with issues more properly in the area of fishery 
management than the proposed rule. One commenter stated that an 
exception to the prohibition should be extended to hook and line 
fishermen, and fishing with nets should be totally banned. The second 
stated that as a recreational fisherman, he had been unable to catch 
fish because trawlers and net gears had devastated populations of such 
fish as haddock, cod, and yellowtail flounder. The commenter stated 
that there should be a partial ban on commercial fishing during certain 
times of the year.
    Response: The statutory language does not permit an exception for 
specific types of fisheries. The comments on specific gear types are 
not within the scope of this rulemaking and should more properly be 
addressed to the Fishery Management Councils responsible for regulating 
specific fisheries.

Classification

    This final rule has been determined to be not significant for 
purposes of E.O. 12866. Because NMFS is unable to consider alternatives 
to the statutory mandate, the preparation of an environmental 
assessment under the National Environmental Policy Act is not required, 
and none has been prepared.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: January 27, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 229 is amended 
as follows: [[Page 6039]] 

PART 229--INTERIM EXEMPTION FOR COMMERCIAL FISHERIES UNDER THE 
MARINE MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    2. Section 229.2 paragraph (k) is revised to read as follows:


Sec. 229.2  Definitions.

* * * * *
    (k) Incidental take means the intentional nonlethal or accidental 
taking of a marine mammal in the course of commercial fishing 
operations.
* * * * *
    3. Section 229.4 is amended by revising paragraphs (b)(2) 
introductory text, (b)(2)(i)(B), and by adding paragraph (b)(2)(iii) to 
read as follows:


Sec. 229.4  Prohibitions.

* * * * *
    (b) * * *
    (2) Under this part 229, except as provided under paragraph 
(b)(2(iii) of this section, it is unlawful to:
    (i)(A) * * *
    (B) Intentionally lethally take any marine mammal.
* * * * *
    (iii) If a taking under paragraph (b)(2)(i)(A) of this section or 
paragraph (b)(2)(i)(B) of this section is imminently necessary in self-
defense or to save the life of a person in immediate danger, it is not 
an unlawful activity, provided that the taking is reported to the 
appropriate Regional Office of the National Marine Fisheries Service 
within 48 hours after the end of the fishing trip during which the 
taking occurs.
* * * * *
    4. Section 229.6 is amended by revising the third sentence of 
paragraph (c)(2)(i), removing paragraph (c)(6), and redesignating 
paragraphs (c)(7) through (c)(10) as paragraphs (c)(6) through (c)(9), 
respectively, to read as follows:


Sec. 229.6  Issuance of Exemption Certificates.

* * * * *
    (c) * * *
    (2) * * *
    (i) * * * Marine mammal report/log forms require information on: 
The fishery, fishing effort, gear type, and fish species involved; the 
marine mammal species (or description of the animal(s), if species is 
not known), number, date, and location of marine mammal incidental 
takes; type of interaction and any injury to the marine mammal; a 
description of any intentional takes (i.e., efforts to deter animals by 
nonlethal means to protect gear or catch or efforts to protect human 
life involving either lethal or nonlethal means); and any loss of fish 
or gear caused by marine mammals. * * *
* * * * *
    5. Section 229.7 is amended by revising the last sentence of 
paragraph (b), removing paragraph (e), and redesignating paragraph (f) 
as paragraph (e) to read as follows:


Sec. 229.7  Requirements for Category III Fisheries.

* * * * *
    (b) * * * The report must include information on: The fishery, 
fishing effort, gear type, and fish species involved; the marine mammal 
species (or description of the animal(s), if species is not known), 
number, date, and location of all lethal incidental takes; a 
description of any intentional lethal take to protect human life; and 
any loss of fish or gear caused by marine mammals.
* * * * *
[FR Doc. 95-2495 Filed 1-31-95; 8:45 am]
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