[Federal Register Volume 61, Number 235 (Thursday, December 5, 1996)]
[Notices]
[Pages 64500-64504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30933]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 110796I]
Taking of Endangered and Threatened Marine Mammals Incidental to
Commercial Fishing Operations; Commonwealth of Massachusetts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 64501]]
ACTION: Notice of receipt of application for a small take authorization
and application for incidental take authority; request for comments and
information.
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SUMMARY: NMFS has received a request from the Commonwealth of
Massachusetts (Massachusetts) for a general incidental take permit
under the Endangered Species Act (ESA) for northern right whales
incidental to commercial fishing activities within Massachusetts'
territorial waters, and a small take authorization for the same species
and activity under the Marine Mammal Protection Act (MMPA).
At this time, NMFS is providing the public with an advance
opportunity to review these applications. NMFS also is providing
background information, issuing certain suggestions and preliminary
determinations, and identifying important issues raised by these
applications in an attempt to describe the issues accurately,
efficiently and formally in the public forum.
DATES: Comments and information must be received no later than January
6, 1997.
ADDRESSES: Comments on the applications or related information 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 applications and/
or Federal Register notices and other documents mentioned in this
notice may be obtained by writing to this address or by telephoning the
contact listed below.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS (301)
713-2055.
SUPPLEMENTARY INFORMATION: The MMPA was amended on April 30, 1994
(Public Law 103-238). The amendments replaced the Interim Exemption for
Commercial Fisheries, section 114 of the MMPA, with sections 117 and
118, which provide a long-term regime for governing interactions
between commercial fishing operations and marine mammals. The objective
of the new regime was to reduce incidental mortalities and serious
injuries of marine mammals occurring in the course of commercial
fishing operations to insignificant levels approaching a zero mortality
and serious injury rate by the year 2001.
Pursuant to section 118, NMFS places each U.S. commercial fishery
into Category I, II or III based on the level of serious injury and
mortality of marine mammals incidental to commercial fishing
operations. Fishers who participate in a Category I or II fishery must
register in the Marine Mammal Authorization Program (MMAP). Generally,
those fishers who register and who comply with the other provisions of
the regulations in 50 CFR part 229 are exempt from the general
prohibition on the taking of marine mammals incidental to commercial
fishing. In addition to the registration requirement, participants in
Category I and II fisheries must take and observer on board their
vessel if requested, and must carry aboard the vessel documentation
that indicates that they have registered in the MMAP. Participants in
all categories of fisheries must report instances of mortality or
injury to marine mammals that occur in their fishing activities.
Fishers also are required to comply with emergency regulations and any
applicable take reduction plans (TRPs) issued under section 118.
Section 118 of the MMPA requires that NMFS develop and implement a
take reduction plans (TRP) designed to assist in the recovery, or
prevent the depletion of each strategic stock which interacts with a
commercial fishery classified as Category I or II under this section.
The immediate goal of a TRP for a strategic stock of marine mammals is
to reduce, within 6 months of its implementation, mortalities and
serious injuries of those marine mammals incidentally taken in the
course of commercial fishing operations to less than the potential
biological removal (PBR) level for that stock. The long-term goal of
the TRP is to reduce, within 5 years after implementation, serious
injuries and mortalities to insignificant levels approaching a zero
mortality and significant injury rate, taking into account the
economics of the fishery, the availability of existing technology, and
existing state or regional fishery management plans.
With respect to the taking of marine mammals that are listed as
endangered or threatened under the ESA, both sections 118 and
101(a)(5)(E) of the MMPA are applicable. Section 7(b)(4)(C) of the ESA
provides that an incidental take statement may be issued under that
section only if the take is also authorized pursuant to section
101(a)(5) of the MMPA. Prior to 1994 section 101(a)(5) did not exist;
thus, an incidental take statement could not be issued for the
incidental taking of endangered and threatened marine mammals in the
course of commercial fishing operations. Section 101(a)(5)(E) was added
in 1994, in part, to correct this technical oversight and provide a
mechanism for authorizing these types of incidental takes.
Section 101(a)(5)(E)(i) of the MMPA requires NMFS to permit the
taking of marine mammals listed as endangered or threatened under the
ESA incidental to commercial fishing operations if NMFS determines
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 developed or is being developed, and
(3) where required under section 118, a monitoring program has been
established, vessels are registered, and a TRP has been developed or is
being developed. Permits issued under section 101(a)(5)(E)(i) are valid
for up to three consecutive years.
On August 30, 1995, NMFS published final regulations to implement
section 101(a)(5)(E) and section 118 of the MMPA (60 FR 45086) codified
at 50 CFR part 229. Those regulations and the associated notice of
proposed rulemaking (60 FR 31666, June 16, 1995) indicated that, in
addition to the authorization issued under section 118 of the MMPA, a
separate determination and permit issued under 101(a)(5)(E) of the MMPA
would be necessary for fishers to incidentally take marine mammals from
stocks listed as endangered or threatened under the ESA.
Section 101(a)(5)(E)(ii) of the MMPA and 50 CFR 229.20(d) provide
that vessels that are not registered under section 118 of the MMPA
(those participating in category III fisheries) are not subject to MMPA
penalties for the incidental taking of endangered or threatened marine
mammals provided that any mortality or injury of such a marine mammal
is reported to NMFS.
On August 31, 1995 (60 FR 45399), NMFS issued interim final permits
to those fisheries with incidental interactions with certain marine
mammal stocks listed as endangered or threatened under the ESA for
which the appropriate determinations could be made under section
101(a)(5)(E)(i) of the MMPA. In making these determinations, NMFS
referred to the definition of ``negligible impact,'' which under 50 CFR
216.103, means ``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.''
NMFS also announced that, as a starting point, it would consider a
total annual serious injury and mortality of not more than 10 percent
of a stock's PBR level to be insignificant. NMFS also emphasized that
such a criterion would
[[Page 64502]]
not be the only factor in evaluating whether a particular level of take
could be considered negligible. The population abundance and fishery-
related mortality information provided in the stock assessment reports
has varying degrees of uncertainty, and factors other than PBR levels
(e.g., population trend, reliability of abundance and mortality
estimates) must also be considered.
The negligible impact determinations required that NMFS assess the
available information both quantitatively and qualitatively. A finding
of negligible impact made under section 101(a)(5)(E) indicates NMFS'
best assessment that the estimated mortality and serious injury of
endangered and threatened marine mammals incidental to commercial
fishing operations will not adversely affect the species or stock
through effects on annual rates of recruitment or survival. In
addition, section 101(a)(5)(E)(i) also requires that in order to make a
finding of negligible impact, a recovery plan under the ESA must either
be in place or be under development, a monitoring program must be in
place under section 118(d), and a TRP must be developed or in place for
fisheries that impact that stock.
Based on the above, NMFS evaluated the best available information
for stocks listed as endangered or threatened under the ESA and
determined, on a stock-by-stock basis, whether the incidental mortality
and serious injury from all commercial fisheries has a negligible
impact on each marine mammal stock.
NMFS was unable to determine that the mortality and serious injury
incidental to commercial fishing operations would have a negligible
impact to the following stocks, and consequently, indicated that no
take incidental to commercial fishing was allowed: (1) Fin whale,
western North Atlantic stock; (2) humpback whale, western North
Atlantic stock; (3) northern right whale, western North Atlantic stock;
(4) sperm Whale, Western North Atlantic stock; (5) sperm whale,
California/Oregon/Washington stock; (6) humpback whale, California/
Oregon/Washington-Mexico stock; and (7) Hawaiian monk seal.
NMFS issued interim final permits to allow for the incidental, but
not intentional, taking of three stocks of endangered or threatened
marine mammals: (1) Humpback whale, central North Pacific stock; (2)
Steller sea lion, eastern stock; and (3) Steller sea lion, western
stock.
NMFS concluded that there was no documented evidence of fishery-
related interactions for several other endangered and threatened marine
mammal stocks. For further information, refer to the referenced Federal
Register documents and the ``Assessment of Fishery Impacts on
Endangered and Threatened Marine Mammals Pursuant to section
101(a)(5)(E) of the MMPA'' (NMFS August 31, 1995). Copies are available
upon request (see ADDRESSES).
NMFS indicated on August 31, 1995, at 60 FR 45399 that it was
issuing a single interim permit under section 101(a)(5)(E) to
appropriate vessels for 1995, but that individual permits would be
issued for 1996, 1997, and 1998 in conjunction with authorizations
issued under section 118 of the MMPA. In 1996, NMFS issued individual
permits, where appropriate, in association with the section 118
authorization certificates.
NMFS conducted a consultation under section 7 of the ESA on the
issuance of permits under section 101(a)(5)(E) of the MMPA. NMFS
concluded that issuing these permits would not jeopardize the continued
existence of endangered or threatened species under NMFS jurisdiction.
NMFS issued an incidental take statement for each stock of endangered
or threatened marine mammal where takes were authorized. A copy of the
consultation and incidental take statement is available to reviewers
(see ADDRESSES).
Issues To Be Addressed
With respect to the new regime for governing interactions between
commercial fishing operations and marine mammals, several issues should
be emphasized. Some issues may need to be addressed prior to processing
the applications submitted by Massachusetts.
First, section 101(a)(5)(E)(i) of the MMPA refers to commercial
fisheries in the plural. In the past, NMFS considered the impacts of
all commercial fishery operations in making its negligible impact
determinations. Thus, NMFS has not authorized the take of an endangered
or threatened marine mammal in any category I or II fishery unless all
fisheries satisfy the negligible impact standard, even if a particular
fishery, by itself, might satisfy the standard.
In contrast, under 50 CFR part 229, subpart A, fisheries are
classified in Category I, II or III based on cumulative incidental
serious injury and mortality of a particular stock in all fisheries,
and the serious injury and mortality incidental to a particular fishery
(60 FR 45086, August 30, 1995). NMFS invites comments on whether it
would be appropriate to consider this approach with respect to making
negligible impact determinations.
Second, although both Congress and NMFS have stressed the need to
reduce incidental mortalities and serious injuries of marine mammals
occurring in commercial fishing operations, little consideration has
been given to the authorization of less serious types of takings, such
as taking by harassment. Section 118 of the MMPA does not address
takings by harassment. While section 118 requires all injuries to be
reported, fisheries are classified and TRTs are formed based on the
levels of serious injuries and mortalities.
NMFS recognizes Congressional intent that the ``negligible impact''
standard in the MMPA is more stringent than the ``no jeopardy''
standard in the ESA (H.R. Rep. No. 439, 103d Cong. 2d Sess. 30).
Consequently, it could be concluded that the MMPA provides more
protection for endangered and threatened marine mammals than the ESA.
From the language of the statute it would appear that all types of
takings of endangered and threatened marine mammals incidental to
commercial fishing operations are prohibited unless a permit is issued
under section 101(a)(5)(E)(i). Still, it is not absolutely clear
whether Congress intended 101(a)(5)(E) to prohibit all types of
takings, including takes by harassment. The use of the term ``taking''
in the introductory portion of section 101(a)(5)(E)(i) does not appear
to be limited to serious injuries and mortalities yet the first
criterion for issuing that permit in section 101(a)(5)(E)(i)(I) focuses
only on the impact of serious injuries and mortalities.
In the past, NMFS has not distinguished between types of takes in
issuing permits that authorize the taking of marine mammals incidental
to commercial fishing operations. When NMFS made its determination
under section 101(a)(5)(E) regarding whether permits should be issued
authorizing the take of any threatened or endangered marine mammals in
the Atlantic Ocean, it did not distinguish between takings by
harassment only versus takings by serious injury or mortality.
To date, the agency has not considered issuing permits under
section 101(a)(5)(E) solely for the purpose of taking by harassment.
NMFS is inviting comments on whether it should issue permits for
harassment under 101(a)(5)(E) and, if so, what standards should be used
in making determinations concerning the issuance of these permits.
[[Page 64503]]
Summary of Request
On October 17, 1996, the Director of the Massachusetts Division of
Marine Fisheries submitted to NMFS an application under the MMPA
seeking authorization of a small take of northern right whales
(Eubalaena glacialis) incidental to commercial fishing activities
within Massachusetts' territorial waters, in particular Cape Cod Bay
during the months of February through May. This application was in
response to an order dated September 24, 1996, in Strahan v. Coxe
wherein the presiding District Court judge ordered Massachusetts to
apply, under the MMPA, for a small take of northern right whales. In
their letter, Massachusetts also requested a general incidental take
permit for the northern right whale under either section 7(b)(4) or
section 10(a)(1)(b) of the ESA.
Preliminary Determinations and Suggestions
NMFS is issuing the following preliminary determinations and
suggestions with respect to Massachusetts' request:
(1) Application for a permit under section 101(a)(5)(E)(i) of the
MMPA. On May 28, 1996, NMFS advised Massachusetts that it was
unnecessary and inappropriate for Massachusetts to apply for a small
take permit under section 101(a)(5)(E) and noted that, where
appropriate, NMFS would issue incidental take authority through the
section 118 authorization certificate process. There was no new
evidence provided in the letter submitted by Massachusetts to indicated
that NMFS should re-evaluate its previous position that a negligible
impact determination could not be made for right whales.
Since registration under the MMPA is required under section 118 for
participants in Category I and II fisheries, NMFS' initial response
indicated that an application for a permit under section 101(a)(5)(E)
would be redundant.
In 1995 and 1996, NMFS initiated the process for issuing permits
under 101(a)(5)(E) without requiring applications from individuals,
states or fishing groups. This process should be distinguished from the
process under section 118 where individual applications are required
unless registration is integrated with a pre-existing registration
program. NMFS recognizes that the legislative history of the 1994
amendments stresses that the agency should, wherever possible, provide
permits under section 101(a)(5)(E) to identifiable groups of vessels
rather than individuals (H.R. Rep. No. 439, 103d Cong. 2d Sess. 30);
NMFS issued section 101(a)(5)(E) permits in conjunction with section
118 authorization certificates in accordance with this legislative
guidance.
Essentially, the section 101(a)(5)(E) permit is ``piggy-backed'' on
the section 118 authorization certificate. This approach is consistent
with other NMFS actions to integrate and coordinate registration under
the MMPA with existing fishery license, registration, or permit systems
and related programs, wherever possible (50 CFR 229.4). In addition,
the proposed rule for the 1997 list of fisheries proposes to provide
additional flexibility for integrated registration systems (61 FR
37035, July 16, 1995). The authorization certificate is issued annually
while a permit under section 101(a)(5)(E) normally remains valid for 3
years. NMFS may initiate a review of the appropriateness of its section
101(a)(5)(E) determinations for certain marine mammal stocks and for
certain fisheries at any time within this 3-year period. For example,
NMFS may initiate review in the context of the development of TRPs that
are expected to achieve the negligible impact goal for various stocks
of endangered and threatened marine mammals.
NMFS is seeking public comments on its initial response provided to
Massachusetts.
(2) State cooperative application under section 118. As an
alternative to applying for a permit under section 101(a)(5)(E), NMFS
encourages Massachusetts to work to develop an integrated registration
system so that registration for the purpose of the MMPA (including both
section 118 certificates of authorization and section 101(a)(5)(E)
permits) can be coordinated with Massachusetts' fishery registration
system.
(3) Petition for modification under section 101(a)(5)(E)(iv) of the
MMPA. Section 101(a)(5)(E)(iv) and 50 CFR 229.20(f) authorize NMFS to
modify the list of fisheries authorized to take endangered or
threatened marine mammals, after notice and opportunity for public
comment, if NMFS determines that there has been a significant change in
the information or conditions used to make the original determinations.
If Massachusetts is applying for a permit under section
101(a)(5)(E)(i) in order to challenge the list of fisheries authorized
to take endangered or threatened marine mammals (See 60 FR 45399,
August 31, 1996), NMFS suggests that Massachusetts consider submitting
a petition for the modification of that list. It should be emphasized
that such a determination must be based upon a significant change in
the information or conditions used to make the original determination
with respect to that list.
At this time NMFS does not consider the application submitted by
Massachusetts to indicate a significant change in the information
available in August, 1995. However, NMFS notes that the court in
Strahan v. Coxe ordered Massachusetts to develop a Massachusetts Take
Reduction Plan (Massachusetts TRP) and that Massachusetts is
cooperating with NMFS to develop a Large Whale Take Reduction Plan
(LWTRP) that addresses the take of right whales in Massachusetts waters
as well as waters off other Atlantic coastal states. As Massachusetts
and NMFS develop and implement these or other TRPs, the impact of
fisheries on endangered and threatened marine mammal stocks may be
reduced significantly. NMFS encourages Massachusetts to provide a
summary of new information, including the Massachusetts TRP, the LWTRP,
and any other mitigation efforts or relevant material, as a part of any
petition for modification under section 101(a)(5)(E)(iv).
(4) Application for an incidental take statement under section
7(b)(4) of the ESA. NMFS does not consider it necessary or appropriate
for Massachusetts to apply for an incidental take statement under
section 7(b)(4) of the ESA. If there is an agency action by NMFS or
another Federal agency, that Federal agency must comply with section 7
of the ESA and, if appropriate, a section 7 incidental take statement
will be issued in association with that consultation. Although a state
or private party may initiate the process that would result in an
agency action, eg., by applying for a Federal permit, it is
inappropriate for a state or private party to apply for an incidental
take statement directly.
NMFS considers the issuance of permits under section
101(a)(5)(E)(i) and the implementation of a Federal TRP under section
118 to be ``agency actions'' and would engage in consultation with
itself before taking such actions; if appropriate, an incidental take
statement would be issued in association with such consultations.
Although NMFS views an application for an incidental take statement
under section 7(b)(4) to be inappropriate, certain information from
Massachusetts would be useful in conducting any consultation related to
state fishing activities and NMFS would encourage Massachusetts to work
with the agency in providing that information. For example, a detailed
description of the
[[Page 64504]]
proposed activity, information concerning the expected level of impact
of the activity on northern right whales and other endangered and
threatened species under NMFS' jurisdiction, including species other
than marine mammals, and reasonable measures to minimize such impacts
would assist NMFS in conducting the consultation and in issuing any
incidental take statement.
Therefore, NMFS intends to reject Massachusetts' request for an
incidental take statement.
(5) Application for an incidental take permit under section
10(a)(1) of the ESA. An incidental take permit under section 10(a)(1)
of the ESA is unnecessary if an incidental take statement is issued in
conjunction with a consultation conducted under section 7 of the ESA,
with respect to the issuance of permits under section 101(a)(5)(E).
The legislative history of section 101(a)(5)(E) indicates that the
issuance of a permit under that section should be considered a federal
agency action for the purposes of the ESA (H. Rept. 103-439 p. 30).
This indicates that any incidental take associated with a section
101(a)(5)(E) authorization would be covered through a section 7
incidental take statement rather than a section 10 incidental take
permit.
NMFS notes that, unlike section 7 of the ESA, the provisions of
section 10 do not include a cross-reference to section 101(a)(5) of the
MMPA; nonetheless, NMFS stresses that section 7 of the ESA indicates
that, except as otherwise provided, no provision of the ESA shall take
precedence over any more restrictive provision of the MMPA. Therefore,
any authorization to take endangered and threatened marine mammals must
comply with provisions of both the ESA and the MMPA.
NMFS would refuse to consider any application for an incidental
take permit unless the application referred to all endangered and
threatened species under NMFS' jurisdiction that may be taken by the
proposed activity. For that reason, NMFS considers the application
submitted by Massachusetts to be incomplete. In addition, NMFS
recommends that Massachusetts provide a more detailed and complete
description of the proposed activity, with particular emphasis on the
anticipated impact of that activity on endangered and threatened
species.
NMFS also considers the proposed conservation plan submitted by
Massachusetts to be inadequate. For example, that plan should specify
the steps that will be taken to monitor, minimize and mitigate the
impacts of the proposed activity on endangered and threatened species
and their habitat and the funding that will be available to implement
such measures. These and other requirements are specified at 50 CFR
222.22. NMFS, again, notes that additional mitigation measures to
protect northern right whales may be developed in the context of the
Massachusetts TRP, the LWTRP or through other efforts. At this time,
NMFS considers the application for an incidental take permit to be
incomplete. NMFS encourages Massachusetts to provide additional
information in support of their request.
Information Solicited
At this time, NMFS is offering the public an opportunity to review
and comment on (1) the applications, (2) the issues described above,
and (3) NMFS' preliminary determinations and suggestions. Interested
persons are encouraged to submit comments, new and relevant information
regarding interactions between northern right whales and commercial
fisheries in Massachusetts, and suggestions concerning the request (see
ADDRESSES). Following the close of the comment period and upon a
determination that the applications are appropriate and complete, NMFS
will consider all relevant information in a reassessment of impacts. If
appropriate, NMFS will propose to authorize the taking as requested. If
NMFS proposes to authorize this take request, interested parties will
be given additional time and opportunity to comment.
Dated: November 29, 1996.
Ann Terbush,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 96-30933 Filed 12-4-96; 8:45 am]
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