[Federal Register Volume 63, Number 250 (Wednesday, December 30, 1998)]
[Notices]
[Pages 71894-71895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34451]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[I.D. 120998B]


Taking of Threatened or Endangered Marine Mammals Incidental to 
Commercial Fishing Operations; Extension of Permits

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

ACTION: Extension of permits; request for comments.

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SUMMARY: NMFS hereby extends the current permits for those fisheries 
that have negligible impacts on marine mammal stocks listed as 
threatened or endangered under the Endangered Species Act (ESA) for 6 
months through June 30, 1999. This action allows the incidental, but 
not intentional, taking of such marine mammals in commercial fishing 
operations.
    NMFS also requests comments on the criteria for determining whether 
such fisheries have a negligible impact on marine mammal stocks and on 
such other issues as whether authorizations should include provisions 
for taking that does not involve mortalities and/or serious injuries to 
marine mammals.

DATES: Effective January 1, 1999-June 30,1999. Comments on the criteria 
for issuance of permits will be accepted through February 16, 1999.

ADDRESSES: Send comments on the criteria for issuance of permits to 
Chief, Marine Mammal Division, Office of Protected Resources, National 
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 
20910-2337.

FOR FURTHER INFORMATION CONTACT: Dean Wilkinson, NMFS (301) 713-2322.

SUPPLEMENTARY INFORMATION: Section 101(a)(5)(E) of the Marine Mammal 
Protection Act (MMPA) requires the authorization of the incidental 
taking of individuals from marine mammal stocks listed as threatened or 
endangered under the Endangered Species Act (ESA) in the course of 
commercial fishing operations 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 has been developed or is 
being developed for such species or stock under the ESA; and (3) where 
required under section 118 of the MMPA, a monitoring program has been 
established, vessels engaged in such fisheries are registered in 
accordance with the provisions contained in section 118, and a take 
reduction plan has been developed or is being developed for such 
species or stock.
    ``Negligible impact'' as defined in 50 CFR 216.103 and as applied 
here 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.''
    Section 118 requires the registration of vessels in fisheries 
listed as either Category I or Category II on the annual list of 
commercial fisheries. A Category I fishery is a fishery with ``frequent 
incidental mortality and serious injury of marine mammals.'' A Category 
II fishery is a fishery with ``occasional incidental mortality and 
serious injury of marine mammals.'' Registration is not required for 
Category III fisheries, which have ``a remote likelihood of or no known 
incidental mortality or serious injury of marine mammals.'' The 
proposed list of fisheries for 1999 was published on August 11, 1998 
(63 FR 42803).
    On August 31, 1995 (60 FR 45399), NMFS issued interim final permits 
for those fisheries meeting the conditions under section 101(a)(5)(E) 
of the MMPA. As a starting point for making determinations, NMFS 
announced it would consider a total annual serious injury and mortality 
of not more than 10 percent of a threatened or endangered marine mammal 
stock's potential biological removal (PBR) level to be insignificant. 
PBR is defined in the MMPA as ``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.'' NMFS also announced that such a criterion 
would not be the only factor in evaluating whether a particular level 
of take would be considered negligible. Because population abundance 
and fishery-related mortality information used in calculation of PBR 
have varying degrees of uncertainty, NMFS determined that such factors 
as population trend and reliability of abundance and mortality 
estimates also should be considered.
    Based on requirements of section 101(a)(5)(E) of the MMPA and these 
criteria, 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. Permits were issued for Category I and Category II 
fisheries taking animals from these stocks. Consistent with the 
provisions of section 101(a)(5)(E)(ii) of the MMPA, NMFS determined 
that permits were not required for Category III fisheries, which are 
not required to register under section 118 of the Act. The only 
requirement for Category III fisheries is that any serious injury or 
mortality be reported.
    The MMPA provides that permits may be issued for a three year 
period. The current permits expire on December 31, 1998. The list of 
permitted fisheries was published on August 31, 1995 (60 FR 45401). 
Currently, none of the permitted fisheries has a serious injury and 
mortality level above 10 percent of PBR for listed species. Combined 
mortality from the western stock of Steller sea lions for all currently 
permitted fisheries is estimated to be 30.3, and ten percent of PBR is 
35. Combined mortality from the eastern stock of Steller sea lions is 
estimated to be 13.8, and ten percent of PBR is 136. Combined mortality 
from the central north Pacific stock of humpback whales caused by 
currently permitted fisheries is 0.8 and ten percent of PBR is 0.74. 
Because the population is increasing and the estimated mortality is 
less than one whale per year, current permits could be reissued.
    If existing criteria were to be used, permits could be reissued for 
a 3-year period for fisheries affecting all three stocks. NMFS views 
this as an opportunity to review existing criteria for the issuance of 
permits and to address issues that have arisen since the permits were 
first issued. Therefore, NMFS is extending the existing permits for a 
6-month period and requesting public comment before issuing new 
permits. In accordance with the MMPA, opportunity will also be given to 
comment on the permits before they are issued.
    NMFS requests comments on whether the current criteria for issuance 
of permits under section 101(a)(5)(E) of the MMPA are adequate or 
whether changes should be made. Currently, the method

[[Page 71895]]

for determinating negligible impact is based on 10 percent of PBR with 
other factors considered when appropriate. Some suggestions have been 
made including: the determination be based on recovery rate for the 
stock involved; some other percentage of PBR be used since PBR already 
contains a recovery factor; or the criteria be related to the zero 
mortality rate goal. In addition, NMFS invites comments on how 
cumulative impact of a number of different fisheries should affect 
permit issuance. This is not an issue with the existing permits, but it 
may be a consideration in the future.
    A couple of issues have arisen since the first permits were issued, 
and NMFS invites comment on how they should be addressed. First, there 
is an issue as to whether the permits should apply to takings that do 
not involve serious injuries and mortalities. It is not absolutely 
clear whether Congress intended section 101(a)(5)(E) to apply to all 
types of takes. The use of the term ``taking'' in the introductory 
portion of the section does not appear to be limited to serious 
injuries and mortalities, but the criteria for issuance of a permit 
focus only on the impact of serious injuries and mortalities. There is 
a question as whether permits should cover both types of taking. In 
addition, to date, the agency has not considered issuing permits solely 
for takings that do not involve serious injuries or mortalities. NMFS 
invites comments on whether it should issue permits to cover such 
takings and, if so, what criteria should be used in making 
determinations concerning the issuance of such permits.
    Second, NMFS request comments on whether it should or can issue 
permits covering less serious types of taking when permits cannot be 
issued to fisheries for takings involving serious injury or 
mortalities.
    Issuance of Permits
    Section 105(a)(5)(E) permits are hereby issued to all vessel owners 
registered in fisheries currently holding such permits. The permits 
will be effective on January 1, 1999, and will expire on June 30, 1999.
    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: December 23, 1998.
P. Michael Payne,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 98-34451 Filed 12-29-98; 8:45 am]

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