[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]
BILLING CODE 3510-22-P