[Federal Register Volume 61, Number 202 (Thursday, October 17, 1996)]
[Notices]
[Pages 54157-54159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26634]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 100896B]


Small Takes of Marine Mammals Incidental to Specified Activities; 
U.S. Coast Guard

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


[[Page 54158]]


ACTION: Notice of receipt of application for a small take exemption; 
request for information.

-----------------------------------------------------------------------

SUMMARY: Under the Marine Mammal Protection Act (MMPA), NMFS has 
received a request from the U.S. Coast Guard (USCG) for a small take of 
certain marine mammal species incidental to USCG vessel and aircraft 
operations off the U.S. Atlantic shoreline over the next 5 years.

DATES: Comments and information must be received no later than November 
18, 1996.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Marine Mammal Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-2337. A copy of the application and biological opinion 
may be obtained by writing to this address or by telephoning the 
contact listed below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS (301) 
713-2055.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce (Secretary) to allow, upon request, the 
incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing), within a specified geographical region if certain findings 
are made and regulations are issued.
    Permission may be granted for periods of 5 years or less if the 
Secretary finds that the taking will have a negligible impact on the 
species or stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses, and 
regulations are prescribed setting forth the permissible methods of 
taking and the requirements pertaining to the monitoring and reporting 
of such taking.

Summary of Request

    On June 2, 1995, NMFS received an application for a small take 
exemption under section 101(a)(5)(A) of the MMPA from the USCG in order 
to allow a small take of certain marine mammal species incidental to 
USCG vessel and aircraft operations off the U.S. Atlantic shoreline 
over the next 5 years. This application was in response to an order 
dated May 21, 1995 in Strahan v. Linnon wherein the presiding District 
Court judge ordered the USCG to apply by May 31, 1995, under section 
101(a)(5)(A) of the MMPA, for a small take of northern right whales 
(Eubalaena glacialis). The application requested the following marine 
mammal species, in addition to the northern right whale: Blue whale 
(Balaenoptera musculus), fin whale (B. physalus), sei whale (B. 
borealis), humpback whale (Megaptera novaeangliae), sperm whale
    (Physeter macrocephalus).
    Specific activities covered in the application are the operation of 
USCG vessel and aircraft activities in the North Atlantic, including 
responses to marine pollution events, port safety and security issues, 
law enforcement efforts, search and rescue missions, vessel traffic 
control, and maintenance of aids to navigation.
    Before processing this application, NMFS determined that it would 
be necessary to first complete consultation under section 7 of the 
Endangered Species Act (ESA). The USCG submitted a final ESA Biological 
Assessment for the U.S. Atlantic Coast on August 3, 1995, and NMFS 
issued a Biological Opinion on September 15, 1995. As a result of an 
October 9, 1995, humpback whale strike in the Gulf of Maine, the USCG 
requested reinitiation of consultation on February 22, 1996. That 
process was concluded on July 22, 1996. During the time period for 
consultation, processing the USCG application for a small take 
authorization was suspended.
    The finding of the July 22, 1996, section 7 consultation was that 
continued vessel and aircraft operations by the USCG are likely to 
jeopardize the continued existence of northern right whales. However, 
NMFS also provided the USCG with a reasonable and prudent alternative, 
which, if implemented fully and in a timely manner by the USCG, 
significantly reduces the USCG's potential to cause injury or mortality 
to a right whale and thereby avoids the likelihood of jeopardizing the 
continued existence of right whales. This reasonable and prudent 
alternative is described in the July 22, 1996 biological opinion which 
is available upon request (see ADDRESSES).

Finding

    Under section 101(a)(5)(A) of the MMPA, authorization to harass, 
injure or kill marine mammals incidental to specified activities may be 
granted for periods up to 5 years if NMFS finds, after notice and 
opportunity for public comment, that the taking will have a negligible 
impact on the species or stock(s) of marine mammals and will not have 
an unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses. Negligible impact is the 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. In 1995, NMFS estimated that the potential biological removal 
(PBR) level for the Western North Atlantic right whale was 0.4 whales. 
PBR is the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population.
    The average reported mortality and serious injury to northern right 
whales due to ship strikes was one whale per year during 1990-94 
(Blaylock et al. 1995). The USCG reportedly was responsible for one 
strike in 1991 and another in 1993. Therefore, because NMFS has 
determined that the loss of even a single northern right whale is 
significant (i.e., greater than PBR), a negligible impact finding under 
section 101(a)(5)(A) cannot be made for ship strikes of northern right 
whales by the USCG. For that reason, the USCG's June 2, 1995, 
application for a small take authorization for northern right whales 
was denied by letter on July 31, 1996. The requested authorization for 
the additional marine mammal species incidental to USCG operations was 
not addressed at that time.

Strahan v. Linnon and Strahan v. Coxe

    In these two cases, the presiding District Court judge expressed 
concern with NMFS' actions to date on the small take application and 
other marine mammal authorizations. Therefore, NMFS is announcing the 
receipt of the USCG application in order to crystallize the issues 
efficiently and formally in the public forum.

Issues

    NMFS has identified the following issues that, in addition to the 
requirements of section 101(a)(5 )(A) of the MMPA, must be addressed 
prior to publication of a proposed rule. These issues are:
    (1) While an authorization for the serious injury or mortality of 
northern right whales cannot be issued for reasons stated above, should 
NMFS issue an authorization for the harassment or non-serious injury of 
northern right whales by USCG activities.
    (2) Should NMFS publish a proposed rule to authorize the incidental 
take (including serious injury and mortality) of marine mammal species 
other than right whales, including marine mammal

[[Page 54159]]

species that are unlikely to be struck by USCG vessels (harassment 
takes).
    (3) If NMFS is unable to make a negligible impact determination for 
one or more of the applicant's marine mammal species (see 50 CFR 
216.103(c)), should NMFS consider an authorization for the harassment 
or non-serious injury of these species under section 101(a)(5)(D) of 
the MMPA by USCG activities.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the request and the structure and content of 
the regulations (if appropriate) to allow the taking (see ADDRESSES). 
NMFS will consider this information in developing an environmental 
assessment under the National Environmental Policy Act, and, if 
appropriate, propose regulations to authorize the taking. If NMFS 
proposes regulations to allow this take, interested parties will be 
given time and opportunity to comment.

    Dated: October 10, 1996.
Patricia Montanio,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 96-26634 Filed 10-16-96; 8:45 am]
BILLING CODE 3510-22-F