[Federal Register Volume 60, Number 169 (Thursday, August 31, 1995)]
[Notices]
[Pages 45399-45401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21775]



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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. I.D. 082595A]


Taking of Threatened or Endangered Marine Mammals Incidental to 
Commercial Fishing Operations; Interim Permit

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

ACTION: Notice of finding; interim permit; request for comments.

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SUMMARY: NMFS hereby issues an interim permit to those fisheries that 
have negligible impacts on marine mammal stocks listed as threatened or 
endangered under the Endangered Species Act (ESA). This action allows 
the incidental, but not intentional, taking of these marine mammals in 
commercial fishing operations. Vessel owners in the specified fisheries 
must be registered under section 118 of the MMPA to be eligible for the 
interim permit for taking.

EFFECTIVE DATES: Effective September 1, 1995. Comments on the issuance 
of the interim permits must be received by October 16, 1995.

ADDRESSES: Send comments on the interim permits to Chief, Marine Mammal 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910. A copy of the 
negligible impact findings referred to in this notice may be obtained 
by writing to the above address.

FOR FURTHER INFORMATION CONTACT: Victoria Cornish, Office of Protected 
Resources, 301-713-2322; Douglas Beach, Northeast Region, 508-281-9254; 
Charles Oravetz, Southeast Region, 813-570-5301; James Lecky, Southwest 
Region, 310-980-4015; Brent Norberg, Northwest Region, 206-526-6140; 
Steve Zimmerman, Alaska Region, 907-586-7235.

SUPPLEMENTARY INFORMATION: Section 101(a)(5)(E) of the MMPA requires 
the authorization of the taking incidental to commercial fishing of 
individuals from marine mammal stocks listed as threatened or 
endangered under the ESA if it is determined that: (1) Incidental 
mortality and serious injury will have a negligible impact on the 
affected species or stock, (2) a recovery plan for that species or 
stock has been or is being developed, and (3) where required under 
section 118, a monitoring program has been established, vessels engaged 
in such fisheries are registered, and a take reduction plan has been or 
is being developed.
    On June 16, 1995, NMFS published in the Federal Register proposed 
regulations to implement section 101(a)(5)(E) and section 118 of the 
MMPA in the Federal Register, and a proposed list of fisheries (LOF) 
that categorized all U.S. commercial fisheries into three groups based 
on the frequency of incidental mortality and serious injury of marine 
mammals (60 FR 31666). That notice also explained that separate permits 
would be required for fishers to incidentally take marine mammals from 
stocks listed as threatened or endangered under the ESA. On July 19, 
1995, NMFS published a notice to correct errors in the proposed 

[[Page 45400]]
LOF (60 FR 37043). In both notices, comments were requested that 
addressed: (1) Those fisheries in the proposed LOF that interact with 
species or stocks listed under the ESA, and (2) information on the 
magnitude of the takes of such species or stocks found in the 
environmental assessment (EA) that accompanied the rule. These comments 
and NMFS' responses to the comments are included in the preamble of the 
final rule to implement section 118 published in the Federal Register 
on August 30, 1995.
    Several commenters expressed concern that the information upon 
which negligible impact findings under section 101(a)(5)(E) were to be 
made was not provided in sufficient detail for informed comments to be 
made. Comments also indicated that it was unclear how NMFS proposed to 
make the determination that the incidental mortality and serious injury 
from commercial fisheries would have a negligible impact on such 
species or stocks. It was recommended that NMFS publish a notice that 
clearly describes the stocks and fisheries for which it proposes to 
make a finding of negligible impact and explain the basis for the 
proposed determinations. The time frame for issuance of the section 
101(a)(5)(E) permits did not allow for a more complete analysis of 
endangered and threatened stocks on a fishery-by-fishery basis. 
Therefore, NMFS issues this interim permit and an explanation of the 
process by which negligible impact determinations have been made, and 
invites public comments on the issuance of section 101(a)(5)(E) 
permits. NMFS will issue individual permits, and any necessary 
revisions to the LOF, prior to January 1, 1996.
Process for Determining Negligible Impact

    In order to determine whether serious injuries and mortalities 
incidental to commercial fishing activities are having a negligible 
impact on threatened or endangered stocks of marine mammals, NMFS 
evaluated the total number of all incidental serious injuries and 
mortalities due to commercial fishing for each such stock. Pertinent 
information is included in final stock assessment reports made 
available on August 25, 1995 (60 FR 44308) and in the EA prepared for 
the proposed rule implementing section 118 of the MMPA.
    ``Negligible impact'', as defined in 50 CFR 228.3, is ``an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' Because of the qualitative nature of this definition and 
limitations on available information, NMFS determined that the 
application of strict quantitative criteria for making negligible 
impact findings was not appropriate. However, as a starting point, NMFS 
considered a total annual serious injury and mortality of not more than 
10 percent of a stock's Potential Biological Removal (PBR) level to be 
insignificant, based on recommendations of a NMFS workshop held in 
June, 1994, to propose guidelines for preparing stock assessment 
reports.
    Such a criterion could not, however, be the only factor in 
evaluating whether a particular level of take could be considered 
negligible. The information in the stock assessment reports and the EA 
has varying degrees of uncertainty, and factors other than PBR level 
(e.g., population trend) were also considered. Because the negligible 
impact determinations required some judgment based upon the available 
information, each finding indicates NMFS' best assessment of whether or 
not the estimated mortality and serious injury of endangered and 
threatened marine mammals incidental to commercial fishing operations 
will adversely affect the species or stock through effects on annual 
rates of recruitment or survival.
    Participants in fisheries designated as Category III under the MMPA 
are not required to obtain an authorization certificate under section 
118. They are, however, required to report all incidental mortalities 
and injuries of marine mammals in accordance with the regulations 
implementing section 118. Participants in Category III fisheries that 
interact with threatened or endangered stocks for which the criteria 
under section 101(a)(5)(E)(i), discussed above, have been met are not 
subject to penalties under the MMPA, so long as they also report all 
incidental mortalities and injuries of marine mammals in accordance 
with section 118 of the MMPA.
    Vessels that are registered for those fisheries for which NMFS has 
issued permits for the incidental, but not intentional, takes of 
threatened or endangered marine mammals are not subject to penalties 
under the MMPA. NMFS has consulted on the action of allowing takes of 
threatened or endangered stocks under section 7 of the ESA, and has 
determined that the level of takings specified for each stock in the 
permits issued to commercial fishers is not likely to jeopardize the 
continued existence of such stocks.

Summary of Findings

    NMFS has evaluated the best available information for stocks listed 
as threatened or endangered under the ESA and has determined on a 
stock-by-stock basis, whether the incidental mortality and serious 
injury from all commercial fisheries has a negligible impact on such 
stocks.
    Those stocks for which negligible impact findings were made were 
then reviewed to confirm that: (1) A recovery plan has been developed 
or is being developed, and (2) where required under section 118, a 
monitoring program has been established, vessels engaged in such 
fisheries are registered, and a take reduction plan has been or is 
being developed. For stocks that have met all of these criteria, NMFS 
identified the fisheries that may be permitted incidental takes from 
such marine mammal stocks (Table 1).
    For the following stocks, NMFS has determined that the mortality 
and serious injury incidental to commercial fishing operations will 
have a negligible impact. An interim permit is issued for incidental 
takes from these stocks for the Category I and II fisheries indicated 
in Table 1. Vessels engaged in Category III fisheries included in this 
list shall not be subject to penalties for the incidental taking of 
marine mammals listed under the ESA, provided that such takes are 
reported in accordance with section 118 of the MMPA.
     Humpback whale, Central North Pacific stock
     Steller sea lion, Eastern stock
     Steller sea lion, Western U.S. stock
    For the following stocks, NMFS is unable to determine that the 
mortality and serious injury incidental to commercial fishing 
operations will have a negligible impact. No takes of these endangered 
or threatened marine mammal stocks incidental to commercial fishing are 
allowed.
     Fin whale, Western North Atlantic stock
     Humpback whale, Western North Atlantic stock
     Humpback whale, California/Oregon/Washington-Mexico stock
     Northern right whale, Western North Atlantic stock
     Sperm whale, Western North Atlantic stock
     Sperm whale, California/Oregon/Washington stock
     Hawaiian monk seal
    There is no documented evidence of fishery-related interactions for 
the following marine mammal stocks, which are listed as endangered or 
threatened under the ESA:
     Blue whale, Western North Atlantic stock 

[[Page 45401]]

     Blue whale, California/Mexico stock
     Blue whale, Hawaii stock
     Bowhead whale, Western Arctic stock
     Fin whale, California/Oregon/Washington stock
     Fin whale, Alaska stock
     Fin whale, Hawaii stock
     Humpback whale, Western North Pacific stock
     Northern right whale, North Pacific stock
     Sei whale, Western North Atlantic stock
     Sei whale, Eastern North Pacific stock
     Sperm whale, Northern Gulf of Mexico stock
     Sperm whale, Alaska stock
     Sperm whale, Hawaii stock
     Guadalupe fur seal

Issuance of Permits

    A single section 101(a)(5)(E) interim permit is hereby issued to 
all vessel owners currently registered in fisheries designated as 
Category I or II in Table 1. This permit will expire on December 31, 
1995. After considering public comments received, individual permits, 
to be effective January 1, 1996, will be issued for 1996, 1997, and 
1998 in conjunction with registrations under section 118 of the MMPA. 
Specific registration procedures for participants in Category I or II 
fisheries will be published in the final LOF under section 118, which 
will be effective January 1, 1996.
    Permits may be suspended or revoked if the level of taking 
specified in the Incidental Take Statement prepared under section 7 of 
the ESA for each stock for which an incidental take permit is issued is 
exceeded.

    Dated: August 25, 1995.
William W. Fox, Jr.,
Director, Office of Protected Resources, National Marine Fisheries 
Service.

   Table 1.--List of Fisheries and Stocks for Which the Criteria Under  
                  Section 101(a)(5)(E)(I) Have Been Met                 
 [An interim permit is issued for incidental takes from these stocks for
 the Category I and II fisheries indicated. Vessels engaged in Category 
  III fisheries included in this list shall not be subject to penalties 
    for the incidental taking of marine mammals listed under the ESA,   
 provided that such takes are reported in accordance with section 118 of
                                the MMPA]                               
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                                            Stocks for which takes are  
                 Fishery                              allowed           
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Category I fisheries:                                                   
    CA/OR/WA thresher shark/swordfish/    Steller sea lion, Eastern     
     blue shark (blue shark OR only)       stock.                       
     drift gillnet.                                                     
Category II fisheries:                                                  
    Southeast Alaska salmon drift         Humpback whale, Central North 
     gillnet.                              Pacific stock.               
                                          Steller sea lion, Eastern     
                                           stock.                       
    AK Prince William Sound salmon drift  Steller sea lion, Western U.S.
     gillnet.                              stock.                       
    AK Yakutat salmon set gillnet.......  Steller sea lion, Eastern     
                                           stock.                       
    AK Cook Inlet salmon drift gillnet..  Steller sea lion, Western U.S.
                                           stock.                       
    AK Cook Inlet salmon set gillnet....  Steller sea lion, Western U.S.
                                           stock.                       
    AK Peninsula/Aleutian Islands salmon  Steller sea lion, Western U.S.
     drift gillnet.                        stock.                       
    AK Bristol Bay salmon drift gillnet.  Steller sea lion, Western U.S.
                                           stock.                       
    AK Bristol Bay salmon set gillnet...  Steller sea lion, Western U.S.
                                           stock.                       
    AK Metlakatla/Annette Island salmon   Steller sea lion, Eastern     
     drift gillnet.                        stock.                       
    AK Kodiak salmon set gillnet........  Steller sea lion, Western U.S.
                                           stock.                       
    AK Bering Sea and Aleutian Islands    Steller sea lion, Western U.S.
     groundfish trawl.                     stock.                       
    AK pair trawl.......................  Steller sea lion, Western U.S.
                                           stock.                       
    Southeast Alaska salmon purse seine.  Humpback whale, Central North 
                                           Pacific stock.               
                                          Steller sea lion, Eastern     
                                           stock.                       
    AK southern Bering Sea, Aleutian      Steller sea lion, Eastern     
     Islands, and Western Gulf of Alaska   stock.                       
     sablefish longline/set line--state                                 
     and Federal waters.                                                
                                          Steller sea lion, Western U.S.
                                           stock.                       
Category III fisheries:                                                 
    AK Prince William Sound set gillnet.  Steller sea lion, Western U.S.
                                           stock.                       
    AK Kuskokwim, Yukon, Norton Sound,    Steller sea lion, Western U.S.
     Kotzebue salmon gillnet.              stock.                       
    AK Peninsula/Aleutian Islands salmon  Steller sea lion, Western U.S.
     set gillnet.                          stock.                       
    AK salmon purse seine (except         Steller sea lion, Western U.S.
     Southeast).                           stock.                       
    AK salmon hand/power troll..........  Steller sea lion, Eastern     
                                           stock.                       
                                          Steller sea lion, Western U.S.
                                           stock.                       
    AK North Pacific halibut longline/    Steller sea lion, Eastern     
     set line--state and Federal waters.   stock.                       
                                          Steller sea lion, Western U.S.
                                           stock.                       
    AK miscellaneous finfish/groundfish   Steller sea lion, Western U.S.
     longline/set line--Federal waters.    stock.                       
    AK Gulf of Alaska groundfish trawl..  Steller sea lion, Western U.S.
                                           stock.                       
    CA/OR/WA groundfish trawl...........  Steller sea lion, Eastern     
                                           stock.                       
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[FR Doc. 95-21775 Filed 8-29-95; 1:25 pm]
BILLING CODE 3510-22-M