[Federal Register Volume 64, Number 88 (Friday, May 7, 1999)]
[Notices]
[Pages 24590-24592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11398]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 990430116-9116-01; I.D. 042099A]
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific
Ocean (ETP); Initial Finding
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Finding.
-----------------------------------------------------------------------
SUMMARY: On April 29, 1999, the National Marine Fisheries Service
(NMFS) made the initial finding required by the International Dolphin
Conservation Program Act (IDCPA). NMFS found that there is insufficient
evidence that chase and encirclement by the tuna purse seine fishery
``is having a significant adverse impact'' on depleted dolphin stocks
in the ETP. Based on this initial finding, and effective on the
effective date of the final regulations to implement the IDCPA, tuna
products containing tuna harvested in the ETP by purse seine vessels
with carrying capacity greater than 400 short tons may be labeled
``dolphin-safe'' only if no dolphins were killed or seriously injured
during the set in which the tuna were caught.
DATES: The initial finding will become effective on the effective date
of the final regulations to implement the IDCPA which will be published
in the Federal Register.
ADDRESSES: The Report to Congress and supporting documentation may be
found on the internet at http://swfsc.ucsd.edu/mm res.html or http://
www.nmfs.gov/prot_res/main/new.html. Copies may also be obtained from
the Marine Mammal Division, Southwest Fisheries Science Center, 8604 La
Jolla Shores Drive, P.O. Box 271, La Jolla , California 92038-0271.
FOR FURTHER INFORMATION CONTACT: J. Allison Routt, NMFS, Southwest
Region, Protected Resources Division, (562-980-4020).
SUPPLEMENTARY INFORMATION:
Background
One of the primary fishing methods used to harvest tuna in the ETP
is dolphin encirclement. Under this method, fishermen set their nets
around groups of dolphins because schools of tuna swim below them. Over
the years, fishermen have developed techniques to reduce the number of
dolphins killed annually by encirclement from over 350,000 animals in
the early 1970s to approximately 2,000 in 1998. However, the practice
remains controversial and, in 1989, U.S. tuna canners agreed to use
only tuna that had been caught by methods other than encirclement and
began to use dolphin-safe labels on their cans. In 1990, the term
``dolphin safe'' was defined statutorily to mean no intentional dolphin
encirclement per trip. Amendments to the statute in 1992 prohibited the
sale of non-dolphin safe tuna in the United States after June 1, 1994.
As a result of the U.S. statutes, in 1995 several Latin American
countries agreed in the Panama Declaration to limit dolphin mortalities
associated with tuna fishing in the ETP to no more than 5,000 dolphins
per year, with additional limits on individual stocks. The Panama
Declaration was signed by the nations participating in the voluntary
international dolphin
[[Page 24591]]
conservation program in the ETP, including the United States. In
exchange, the United States agreed to modify its standards for the
``dolphin safe'' label. In order to implement the Panama Declaration,
Congress enacted the IDCPA. However, Congress was reluctant to permit
the labeling standard to change immediately, without additional
research on fishery impacts on depleted dolphin stocks.
Statutory Requirements
Section 304(a) of the Marine Mammal Protection Act (MMPA), as
revised by the IDCPA, requires the NMFS, in consultation with the
Marine Mammal Commission and the Inter-American Tropical Tuna
Commission (IATTC), to ``conduct a study of the effect of intentional
encirclement (including chase) on dolphins and dolphin stocks
incidentally taken in the course of purse seine fishing for yellowfin
tuna in the ETP.'' The law requires the study to consist of abundance
surveys and stress studies to address the question of whether
encirclement is having a significant adverse impact on depleted dolphin
stocks.
Under the IDCPA, the dolphin-safe labeling standard could change
depending upon the results of this study. The IDCPA states that the
Secretary of Commerce shall make a finding in March 1999, based on the
initial results of the study regarding whether the intentional
deployment on or encirclement of dolphins with purse seine nets ``is
having a significant adverse impact'' on any depleted dolphin stock in
the ETP. The authority to make this determination has been delegated to
NMFS. Unless there is an initial finding that the best scientific
information available in March 1999 supports a scientific conclusion
that the fishery is causing a ``significant adverse impact,'' the new
dolphin-safe labeling standard in paragraph (h)(1) of the Dolphin
Protection Consumer Information Act (DPCIA) (i.e., that no dolphins
were killed or seriously injured during the sets in which the tuna were
caught) automatically replaces the prior labeling standard, which
permitted no intentional encirclement of dolphins during the trip in
which the tuna was caught. Similarly, NMFS has been delegated the
Secretary's authority to make a final finding by December 31, 2002,
after additional research is conducted.
Scientific Results
The initial results from the NMFS study are presented in a Report
to Congress. This report also describes the research program's
development of a decision analysis framework to quantitatively evaluate
the various types of information gathered in the study in order to make
the ``significant adverse impact'' determination required by the IDCPA.
The study looked at three dolphin stocks: the northeastern offshore
spotted dolphin, the eastern spinner dolphin, and the coastal spotted
dolphin stocks. The first two stocks are listed as depleted under the
Marine Mammal Protection Act (MMPA). The status of the coastal spotted
dolphin is uncertain but since it might also be considered depleted,
the research survey was designed to produce an estimate of abundance
for this stock as well.
When the eastern spinner dolphin stock was listed as depleted under
the MMPA in 1993, the population was estimated to be approximately 44
percent of its pre-exploitation population size. The northeastern
offshore spotted dolphin in 1993 was estimated to be between 19 and 28
percent of its pre-exploitation population.
According to new abundance estimates from data collected during the
1998 research abundance survey and other available data noted above,
the number of the northeastern offshore spotted dolphin is now
estimated to be 1,011,104 animals, and the estimated number of eastern
spinner dolphins is now 1,157,746 animals. These numbers are large;
however, the population assessment model and analysis indicate that
these populations are apparently not increasing at the expected rate
despite the low level of reported mortalities from the ETP purse seine
fishery since 1991 and the reproductive potential for these
populations.
With respect to the coastal spotted dolphin, the 1998 population
number is estimated to be 108,289 animals. However, much of the
essential information is lacking for coastal spotted dolphins,
especially from the early years of the fishery when the impact on the
stocks would have likely been the greatest. The Report to Congress
concludes that a direct comparison to a 1988 estimate of 29,800 coastal
spotted dolphins is of questionable value since the difference is too
large in size to ``solely be attributable to population growth.''
The Report endeavors to address the issue of slow recovery of the
populations but admits that attributing causality is even more
difficult than interpreting abundance and trend data. The report
attempted to address two sources identified as possible causes for slow
recovery: changing environmental conditions and indirect or unobserved
effects of tuna fishing.
With regard to changing ocean conditions, the environmental data
examined to date shows no evidence of a recent ocean environmental
shift or other long-term change that might affect population growth
rates for depleted ETP dolphin stocks. Therefore, NMFS looked closely
at whether fishing might be the cause. NMFS conducted a literature
review that led to the conclusion that stress caused by encirclement
could not be dismissed as a possible source of the observed failure to
recover at expected rates. Although the stress literature review
concluded that fishery-related stresses could possibly affect mortality
or reproduction in dolphin stocks, it could not attribute population
level impacts of stress as a cause of the failure of the northeastern
offshore spotted dolphin and eastern spinner dolphin stocks in the ETP
to recover as expected. In addition, separation of dolphin cows and
calves and underreported direct kills are two other possible causes of
the failure to recover. Moreover, these potential causes are not
mutually exclusive.
Although NMFS considered the best available scientific data in the
Report, there are several sources of uncertainty regarding these data.
For example, the Report to Congress's conclusion that two of the
depleted dolphin stocks have failed to recover as expected could be
affected substantially because the Tuna Vessel Observer Data (TVOD) may
be biased because of inconsistencies in data collection. For the final
report and finding, NMFS will pursue a careful evaluation of the data
focusing on the recently identified concerns and will conduct a peer-
reviewed analysis of these various data sources. In addition it is
possible that, since observed mortality has been substantially reduced
only in the last ten years, insufficient time has passed to allow
detection of recovery because of lags resulting from the time between
birth and sexual maturity.
More scientific research is necessary to better evaluate the effect
of the tuna purse seine fishery on depleted dolphin stocks in the ETP.
As mandated by the IDCPA, NMFS, in cooperation with other IDCP member
countries, will continue to collect data for estimating population
abundance of dolphin stocks in the ETP in order to determine whether
there are significant adverse impacts to depleted dolphin stocks for
the final finding. A final finding will be made between July 1, 2001,
and December 31, 2002.
[[Page 24592]]
Rationale for Finding
The initial finding relies on two determinations: that there is a
significant adverse impact on the depleted stocks; and that the
significant impact is due to the practices of the purse seine fishery.
For the reasons briefly outlined below, NMFS has determined that there
is insufficient evidence to conclude that intentional deployment on or
encirclement of dolphins with purse seine nets is having a significant
adverse impact on any depleted dolphin stock in the ETP. Because of
this initial finding, the ``dolphin safe'' labeling standard specified
in paragraph (h)(1) of the DPCIA will change on the effective date of
the final regulations to implement the IDCPA.
While the rate of recovery of the dolphin stocks may be lower than
expected, there is insufficient information to conclude that there has
been a significant adverse impact on the depleted stocks. Additionally,
observed dolphin mortality is extremely low. The numbers of dolphins
currently killed by the purse seine fishery is in the low thousands, as
opposed to the hundreds of thousands in the early 1970s. Furthermore,
the total annual mortality of all dolphins in the ETP due to the purse
seine fishery is capped at 5,000 by a binding international agreement.
The dramatic reduction in dolphin mortality over the past 12 years can
be attributed to continued cooperation in the International Dolphin
Conservation Program through the auspices of the IATTC. The current low
level of observed dolphin mortalities in the ETP tuna purse seine
fishery creates an expectation that the fishery will not prevent the
depleted populations from recovering.
Finally, there is no solid evidence in any of the scientific
studies to date that links the apparent failure of dolphin stocks to
recover at the rate expected based on historical data to the current
tuna purse seine fishery practices. The Report to Congress does not
provide evidence that the ETP tuna purse seine fishery is the cause of
the apparent failure of the northeastern offshore spotted dolphin and
eastern spinner dolphin stocks to recover as expected; nor does it
dismiss the fishery as a possible cause. Due to the large disparity in
population abundance estimates of coastal spotted dolphins in the late
1980s versus 1998, it is difficult to evaluate whether the coastal
spotted dolphin population in the ETP has been affected by the ETP tuna
purse seine fishery. As mandated under the IDCPA, NMFS will continue to
conduct IDCPA research on population abundance and stress of dolphins
affected by the ETP tuna purse seine fishery. The final finding will be
made between July 1, 2001, and December 31, 2002.
Authority: Section 5(c) of Pub. L. 105-42; 16 U.S.C. section
1385
Dated: April 30, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-11398 Filed 5-6-99; 8:45 am]
BILLING CODE 3510-22-F