[Federal Register Volume 64, Number 102 (Thursday, May 27, 1999)]
[Notices]
[Pages 28800-28802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13499]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[I.D. 042199C]


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

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

ACTION: Notice of proposal for issuance of permits; request for 
comments.

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SUMMARY: NMFS proposes to issue permits for those fisheries that have 
negligible impacts on marine mammal stocks listed as threatened or 
endangered under the Endangered Species Act (ESA) for a period of 3 
years. This action would allow the incidental, but not intentional, 
taking of marine mammals in commercial fishing operations.

DATES: Comments on the proposed permits will be accepted through July 
12, 1999.

ADDRESSES: Send comments 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 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 section 118 of the 
MMPA, 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 of the MMPA 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 list of fisheries for 1999 was published on February 24, 1999 (64 
FR 9067).
    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 negligible. PBR 
is defined in the MMPA as ``the maximum number of animals, not 
including natural mortalities, that may be removed from a 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 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

[[Page 28801]]

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 MMPA. The only requirement for 
Category III fisheries is that any serious injury or mortality be 
reported.
    On December 30, 1998 (63 FR 71894), NMFS extended the permits until 
June 30, 1999. At that time, NMFS announced that it was reviewing the 
criteria for issuance of permits and requested public comment on 
whether the criteria were adequate or whether changes should be made. 
No comments were received.

Process for Determining Negligible Impact

    Based on internal review, NMFS has adopted the following criteria 
for making the negligible impact determination under section 
101(a)(5)(E) of the MMPA:
    1. The threshold for initial determination will remain at 0.1 PBR. 
If total human-related serious injuries and mortalities are less than 
0.1 PBR, all fisheries may be permitted.
    2. If total human-related serious injuries and mortalities are 
greater than PBR, and fisheries-related mortality is less than 0.1 PBR, 
individual fisheries may be permitted if management measures are being 
taken to address non-fisheries-related serious injuries and 
mortalities. When fisheries-related serious injury and mortality is 
less than 10 percent of the total, the appropriate management action is 
to address components that account for the major portion of the total.
    3. If total fisheries-related serious injuries and mortalities are 
greater than 0.1 PBR and less than PBR and the population is stable or 
increasing, fisheries may be permitted subject to individual review and 
certainty of data. Although the PBR level has been set up as a 
conservative standard that will allow recovery of a stock, there are 
reasons for individually reviewing fisheries if serious injuries and 
mortalities are above the threshold level. First, increases in 
permitted serious injuries and mortalities should be carefully 
considered. Second, as serious injuries and mortalities approach the 
PBR level, uncertainties in elements such as populations size, 
reproductive rates, and fisheries-related mortalities become more 
important.
    4. If the population abundance of a stock is declining, the 
threshold level of 0.1 PBR will continue to be used. If a population is 
declining despite limitations on human-related serious injuries and 
mortalities below the PBR level, a more conservative criterion is 
warranted.
    5. If total fisheries related serious injuries and mortalities are 
greater than PBR, permits may not be issued.

Summary of Findings

    Using these criteria, the impact of commercial fisheries on 
specific stocks of endangered and threatened marine mammals can be 
divided into three groups: (1) Stocks with no fisheries-related 
mortalities for which permits are not necessary; (2) stocks ineligible 
for permits under criteria 4 and 5; and (3) stocks for which commercial 
fisheries are eligible for permits provided other provisions of section 
101(a)(5)(E) of the MMPA are met and for which NMFS proposes issuance 
of permits in this document.
    There are no documented fisheries-related serious injuries or 
mortalities for the following marine mammal stocks which are listed as 
endangered or threatened under the ESA:

Blue whale, California/Mexico stock
Blue whale, Hawaiian stock
Blue whale, western north Atlantic stock
Bowhead whale, western Arctic stock
Fin whale, California/Oregon/Washington stock
Fin whale, Hawaiian stock
Fin whale, northeast Pacific stock
Humpback whale, western north Pacific stock
Northern right whale, north Pacific stock
Sei whale, eastern north Pacific stock
Sei whale, western north Atlantic stock
Sperm whale, Hawaiian stock
Sperm whale, western north Atlantic stock
Guadalupe fur seal

    For the following stocks, NMFS is unable to determine that serious 
injuries and mortalities incidental to commercial fishing operations 
will have a negligible impact. No takes of these threatened or 
endangered marine mammal stocks incidental to commercial fishing 
operations are allowed.

Humpback whale, California/Oregon/Washington-Mexico stock
Northern right whale, western north Atlantic stock
Sperm whale, California/Oregon/Washington stock
Sperm whale, north Pacific stock
Hawaiian monk seal

    Based on the criteria listed above and the 1998 Marine Mammal Stock 
Assessment Reports, NMFS has determined that the serious injuries and 
mortalities incidental to commercial fishing operations will have a 
negligible impact. The Marine Mammal Stock Assessment Reports are 
available on the NMFS web site at (http://www.nmfs.gov/prot__res/
mammals/sa__rep/sar.html). Hard copies are available from Chief, Marine 
Mammal Division (see ADDRESSES). NMFS proposes to issue permits for 
incidental takes from these stocks for the Category I and II fisheries 
listed in Table 1 and requests comments. Vessels participating in 
Category III fisheries included in this list shall not be subject to 
penalties for the incidental taking of marine mammals listed under the 
ESA, provided that such takes are reported in accordance with section 
118 of the MMPA. The stocks for which permits are proposed are:

Fin whale, western north Atlantic stock
Humpback whale, central north Pacific stock
Humpback whale, north Atlantic stock
Steller sea lion, eastern U.S. stock
Steller sea lion, western U.S. stock

    Dated: May 19, 1999.
Hilda Diaz-Soltero,
Director, Office of Protected Resources, National Marine Fisheries 
Service.

 Table 1.--List of Fisheries and Stocks for Which Criteria Under Section
                       101(a)(5)(e) Have Been Met
 [Issuance of permits is proposed for incidental takes from these stocks
  for the Category I and II fisheries indicated. Category III fisheries
     included in this list would not be subject to penalties for the
 incidental taking of marine mammals listed under the ESA, provided that
   such takes are reported in accordance with section 118 of the MMPA]
------------------------------------------------------------------------
                                            Stocks for which takes are
                Fishery                              allowed
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Category I Fisheries:
    CA/OR thresher shark/swordfish       Steller sea lion, Eastern U.S.
     drift gillnet.                       stock.
    Atlantic Ocean, Caribbean, Gulf of   Humpback whale, Western North
     Mexico large pelagics drift          Atlantic stock.
     gillnet.

[[Page 28802]]

 
    Northeast sink gillnet.............  Humpback whale, Western North
                                          Atlantic stock.
                                         Fin whale, Western North
                                          Atlantic stock.
    Atlantic Ocean, Caribbean, Gulf of   Humpback whale, Western North
     Mexico large pelagics longline.      Atlantic stock.
    Gulf of Maine, U.S. Mid-Atlantic     Humpback whale, Western North
     lobster trap/pot.                    Atlantic stock.
                                         Fin whale, Western North
                                          Atlantic stock.
Category II Fisheries:
    Prince William Sound salmon drift    Steller sea lion, Western U.S.
     gillnet.                             stock.
    Alaska Peninsula/Aleutian Islands    Steller sea lion, Western U.S.
     salmon set gillnet.                  stock.
    Southeast Alaska salmon drift        Steller sea lion, Eastern U.S.
     gillnet.                             stock.
                                         Humpback whale, Central North
                                          Pacific stock.
    Cook Inlet salmon drift gillnet....  Steller sea lion, Western U.S.
                                          stock.
    Cook Inlet salmon set gillnet......  Steller sea lion, Western U.S.
                                          stock.
    Bristol Bay salmon drift gillnet...  Steller sea lion, Western U.S.
                                          stock.
    Southeast Alaska salmon purse seine  Humpback whale, Central North
                                          Pacific stock.
    U.S. Mid-Atlantic coastal gillnet..  Humpback whale, Western North
                                          Atlantic stock.
    Gulf of Maine small pelagics         Humpback whale, Western North
     surface gillnet.                     Atlantic stock.
Category III Fisheries:
    Prince William Sound salmon set      Steller sea lion, Western U.S.
     gillnet.                             stock.
    Alaska miscellaneous finfish set     Steller sea lion, Western U.S.
     gillnet.                             stock.
    Alaska salmon troll................  Steller sea lion, Eastern U.S.
                                          stock.
    Alaska miscellaneous finfish/        Steller sea lion, Western U.S.
     groundfish longline/set line.        stock.
    Hawaii swordfish, tuna, billfish,    Humpback whale, Central North
     mahi mahi, oceanic sharks longline/  Pacific stock.
     set line.
    Southern Bering Sea, Aleutian        Steller sea lion, Western U.S.
     Islands, and western Gulf of         stock.
     Alaska sablefish longline/set line
     (federally regulated waters).
    Alaska halibut longline/set line...  Steller sea lion, Western U.S.
                                          stock.
    Gulf of Alaska groundfish trawl....  Steller sea lion, Western U.S.
                                          stock.
    Bering Sea and Aleutian Islands      Steller sea lion, Western U.S.
     groundfish trawl.                    stock.
    WA/OR/CA groundfish trawl..........  Steller sea lion, Eastern U.S.
                                          stock
    RI, southern MA, and New York Bight  Humpback whale, Western North
     inshore gillnet.                     Atlantic stock.
    Long Island Sound inshore gillnet..  Humpback whale, Western North
                                          Atlantic stock.
    Delaware Bay inshore gillnet.......  Humpback whale, Western North
                                          Atlantic stock.
    Gulf of Maine, U.S. Mid-Atlantic     Humpback whale, Western North
     mixed species trap/pot.              Atlantic stock.
    Gulf of Maine herring and Atlantic   Humpback whale, Western North
     mackerel/stop seine/weir.            Atlantic stock.
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[FR Doc. 99-13499 Filed 5-26-99; 8:45 am]
BILLING CODE 3510-22-P