[Federal Register Volume 62, Number 24 (Wednesday, February 5, 1997)]
[Notices]
[Pages 5385-5386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2794]
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DEPARTMENT OF COMMERCE
[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.
ACTION: Notice of denial of application for a small take exemption.
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[[Page 5386]]
SUMMARY: On October 17, 1996, the Director of the Massachusetts
Division of Marine Fisheries submitted to NMFS an application 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). For the reasons discussed in this document, that
application has been denied.
ADDRESSES: Copies of the application, letter, and/or Federal Register
notices mentioned in this document may be obtained by writing to
Michael Payne, Chief, Marine Mammal Division, Office of Protected
Resources, National Marine Fisheries Service, 1315 East-West Highway,
Silver Spring, MD 20910-2337, or by telephoning one of the contacts
listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT:
Kenneth R. Hollingshead or Victoria Cornish, NMFS (301) 713-2322.
SUPPLEMENTARY INFORMATION:
Background
On December 5, 1996 (61 FR 64500), NMFS noted that the Commonwealth
of Massachusetts (Massachusetts) had submitted an application under the
MMPA for 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. Linnon wherein the presiding
District Court judge ordering Massachusetts to apply, under the MMPA,
for a small take of northern right whales. In its 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.
NMFS stated in that Federal Register notice that while the Agency does
not consider the application to be complete in either its discussion of
the interaction, or planned mitigation, and while it does not plan to
begin processing the application until it is complete and Massachusetts
has submitted its Take Reduction Plan (TRP) for northern right whales,
NMFS was offering the public an advance opportunity to review and
comment on the application and the issues. However, no comments were
received during the 30-day comment period.
Issues
For a discussion of the issues, please refer to the notice of
receipt of the application (61 FR 64500, December 5, 1996).
Determination
On January 28, 1997, in a letter to Massachusetts, NMFS determined
that it was not appropriate to consider authorizing the State's
potential incidental take of right whales by commercial fishing through
a permit application process. NMFS may issue authorizations for the
incidental taking of endangered and threatened species under section
101(a)(5)(E) of the MMPA upon its own initiative to fishers operating
in commercial fisheries if negligible impact findings can be made. NMFS
may revaluate determinations under this provision if there is a
significant change in the information used in making the original
determinations. NMFS also reevaluates its negligible impact
determinations after 3 years, as required by statute.
In making negligible impact determinations, NMFS considers the
serious injury and mortality from all commercial fishery operations. On
August 31, 1995 (60 FR 45399), NMFS stated that it was unable to make a
negligible impact determination with respect to impacts of commercial
fisheries on right whales. Although Massachusetts has developed a TRP
since the August 1995 notice was issued, NMFS has concluded that no
significant new information has been submitted to cause the Agency to
reconsider this determination. Since NMFS cannot make a negligible
impact determination, an incidental take authorization under section
101(a)(5)(E) is not appropriate.
In regard to Massachusetts' application for an incidental take
permit under section 7(b)(4) of the ESA, NMFS does not consider it
appropriate for a state or private party to apply for an Incidental
Take Statement under section 7(b)(4) of the ESA as this section applies
only to Federal actions. Issuance of a section 101(a)(5)(E) permit is
considered a Federal action, however, and would be subject to
consultation. If appropriate, a section 7 Incidental Take Statement
would be issued in association with this consultation. Therefore, an
incidental take permit under section 10 is determined to be
unnecessary. While NMFS has determined that the Massachusetts
application for an incidental take under section 7 or 10 is
inappropriate, NMFS has encouraged Massachusetts to provide information
regarding state fishing activities that would be useful in conducting
appropriate consultations.
Accordingly, for the reasons stated above, on January 28, 1997,
NMFS informed Massachusetts that it was inappropriate to proceed, as
requested by Massachusetts, to process MMPA and ESA applications.
Dated: January 30, 1997.
Patricia A. Montanio,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 97-2794 Filed 2-4-97; 8:45 am]
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