[Federal Register Volume 68, Number 131 (Wednesday, July 9, 2003)]
[Proposed Rules]
[Pages 40888-40892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17240]



[[Page 40888]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030630163-3163-01, I.D. 052303F]
RIN 0648-AR15


Authorization for Commercial Fisheries under the Marine Mammal 
Protection Act of 1972; Zero Mortality Rate Goal

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

ACTION: Advance notice of proposed rulemaking; request for comments

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SUMMARY: NMFS is considering options for defining the Zero Mortality 
Rate Goal (ZMRG), which is the requirement for commercial fisheries to 
reduce incidental mortality and serious injury of marine mammals to 
insignificant levels approaching a zero mortality and serious injury 
rate, as identified in the Marine Mammal Protection Act (MMPA). To 
evaluate progress toward this goal, NMFS is promulgating regulations to 
identify what levels of incidental mortality and serious injury would 
satisfy the goal of insignificant levels approaching a zero rate. 
Options for such mortality and serious injury levels are described, and 
NMFS solicits public comments on these options and on other aspects of 
the ZMRG.

DATES: Comments must be received by September 8, 2003.

ADDRESSES: Send comments to Chief, Marine Mammal Conservation Division, 
Attn: ZMRG, Office of Protected Resources, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910. Comments may also be faxed to 301-
713-0376.

FOR FURTHER INFORMATION CONTACT: Thomas Eagle, Office of Protected 
Resources, 301-713-2322, ext. 105, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Section 118(b) of the MMPA (16 U.S.C. 1387(b)), which was enacted 
as part of the MMPA Amendments of 1994 (Pub. L. 103-238, 108 Stat. 
532), is entitled ``Zero Mortality Rate Goal'' and requires commercial 
fisheries to ``reduce incidental mortality and serious injury of marine 
mammals to insignificant levels approaching a zero mortality and 
serious injury rate'' by April 30, 2001. The MMPA also requires the 
Secretary of Commerce (whose responsibilities under the MMPA have been 
delegated to NMFS) to review the progress of commercial fisheries 
toward this goal and to report to Congress on the results of this 
review by April 30, 1998. If, after the review, NMFS determines that 
the rate of incidental mortality and serious injury of marine mammals 
in a commercial fishery is above insignificant levels approaching a 
zero mortality and serious injury rate, NMFS must take appropriate 
action under section 118(f) of the MMPA. The report and regulations 
have not yet been completed.
    Section 118(f) establishes take reduction plans as the mechanism 
NMFS must use to reduce the taking of marine mammals incidental to 
commercial fishing. NMFS is directed to develop and implement a take 
reduction plan designed to assist in the recovery or prevent the 
depletion of each strategic stock which interacts with a Category I 
(frequent incidental mortality or serious injury of marine mammals) or 
II (occasional incidental mortality and serious injury of marine 
mammals) fishery and may develop and implement a plan for any other 
marine mammal stock that interacts with a Category I fishery, which 
NMFS determines has a high level of mortality and serious injury across 
a number of such marine mammal stocks. A strategic stock of marine 
mammals is a marine mammal stock that is listed as threatened or 
endangered under the Endangered Species Act (16 U.S.C. 1531, et seq.), 
designated as depleted under the MMPA, or for which human-caused 
mortality exceeds the stock's Potential Biological Removal level (PBR). 
PBR is 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. PBR is calculated as the product of the minimum population 
estimate of the affected stock (Nmin); one-half the maximum theoretical 
or estimated net productivity rate of the stock at a small population 
size (Rmax); and a recovery factor (RF) between 0.1 and 1.0 (the 
definition is expressed in the following simple equation: PBR = 
Nmin*0.5Rmax*RF, see MMPA section 3(20); 16 U.S.C. 1362(20)).
    Section 118(f)(2) of the MMPA includes two goals of a take 
reduction plan. The immediate goal of a take reduction plan is to 
reduce, within 6 months of implementation, the incidental mortality and 
serious injury of marine mammals incidentally taken in the course of 
commercial fishing operations to levels less than the potential 
biological removal (PBR) level of all affected marine mammal population 
stocks. The long-term goal of a take reduction plan is to reduce 
incidental mortality and serious injury of marine mammals to 
insignificant levels approaching a zero mortality and serious injury 
rate within 5 years of implementation, taking into account the 
economics of the fishery, the availability of existing technology, and 
existing State or regional fishery management plans. Section 118(f)(3) 
establishes priorities for developing and implementing take reduction 
plans if funds are insufficient to develop and implement plans for all 
stocks that interact with Category I or II fisheries.
    When viewed in its entirety, there are several parts of MMPA 
section 118 related to the ZMRG. First, the MMPA identifies a target 
level of mortality and serious injury (insignificant levels of 
mortality and serious injury approaching a zero mortality and serious 
injury rate) and a date by which commercial fisheries should reach that 
target (section 118(b)(1)). Second, the MMPA requires NMFS to complete 
a review of fisheries' progress toward the ZRMG and to report the 
results of this review to Congress. The report must also identify any 
fishery for which additional information is necessary to accurately 
assess the level of incidental mortality and serious injury of marine 
mammals in the fishery. Third, there is a mechanism (take reduction 
plans) to reduce incidental mortality and serious injury rates to the 
target levels (section 118(b)(4), (f)(1) and (2)), which includes 
specific considerations (available technology, economic feasibility, 
and existing fishery management plans) that must be taken into account 
in achieving the long-term goal (section 118(f)(2)). Furthermore, in 
section 118(f)(3), which identifies priorities for the development and 
implementation of take reduction plans, Congress recognized that there 
may not be adequate funding to convene all the necessary take reduction 
teams at once.
    In August 2002, several organizations filed suit against NMFS 
alleging that NMFS failed to meet requirements of MMPA section 118. 
These organizations and NMFS negotiated a settlement agreement that 
requires, among other things, for NMFS to define the ZMRG through 
regulation and to submit the report to Congress as required by section 
118(b)(3). The court approved a settlement agreement under which NMFS 
would submit this advance notice of proposed rulemaking to the Federal 
Register by the end of June 2003 and complete the regulations and

[[Page 40889]]

the report to Congress by the end of June 2004.

History of the ZMRG

    When the MMPA was enzcted in 1972, the ZMRG was directed solely at 
the yellowfin tuna purse seine fishery in the Eastern Tropical Pacific 
Ocean (ETP), where participants in the fishery deliberately encircled 
dolphins to catch tuna. Hundreds of thousands of dolphins were being 
killed each year in the course of this fishing practice. Since 1972, 
Congress addressed the ZMRG several times from 1972 to 1997, and a 
brief history of Congressional action and guidance related to ZMRG is 
presented below.

The MMPA of 1972 (Public Law No. 92-522, 86 Stat. 1027)

    Congress developed the legislative guidance for protecting marine 
mammals and defining the ZMRG in response to unsustainable mortality 
levels. The House committee noted that it was not their intent to shut 
down or significantly curtail the activities of the tuna fleet so long 
as the Secretary of Commerce ``is satisfied that the tuna fishermen are 
using the best available technology to assure minimal hazards to marine 
mammal populations'' (H.R. Rep No. 92-707, at 24 (1971)). The Senate 
added that regulations should be imposed ``as soon as practicable to 
minimize marine mammal fatalities through the use of currently 
available technology...'' (S. Rep. No. 92-863, at 6 (1972)). The Senate 
report included guidance that, ``while it should be the goal of 
Congress and the Executive eventually to eliminate totally the killing 
of porpoises, present technology is not adequate to the task.'' House 
and Senate Conferees agreed on a provision in MMPA section 101(a)(2), 
16 U.S.C. 1371(a)(2), as follows: ``In any event it shall be the 
immediate goal that the incidental kill or incidental serious injury of 
marine mammals permitted in the course of commercial fishing operations 
be reduced to insignificant levels approaching a zero mortality and 
serious injury rate.'' (H. R. Conf. Rep. No. 92-1488, at 5 (1972)). In 
the Joint Explanatory Statement the report provided, ''...the objective 
of regulation would be to approach as closely as is feasible the goal 
of zero mortality and injury to marine mammals...It may never be 
possible to achieve this goal, human fallibility being what it is, but 
the objective remains clear.'' (H. R. Conf. Rep. No. 92-1488 at 23)
    In its original form, the ZMRG was directed at the ETP tuna fishery 
but was sufficiently broad that it could include other fisheries in 
waters under U.S. jurisdiction. The ZMRG guided NMFS to regulate the 
tuna fleet to minimize incidental mortality immediately to the extent 
that the current technology would allow; however, neither NMFS nor the 
industry could be satisfied with that effort and should continue to 
strive to eliminate incidental mortality of marine mammals in the 
fishery. In the regulation of the tuna fleet, however, NMFS could not 
significantly curtail fishing activities if fishers were using the best 
available technology. Thus, the original ZMRG contained the following 
elements: immediate reduction of incidental mortality to the extent 
that current technology would allow, economic consideration of 
regulating fishing operations, and the long-term necessity to continue 
technological improvement for applying to future fishing operations.

MMPA Amendments of 1981 (Public Law No. 97-58, 95 Stat. 979)

    In developing the amendments to the MMPA in 1981, the House 
committee noted successes of the MMPA, including, ``In the area of 
reducing the incidental take of porpoises in tuna fishing operations, 
for example, the number of porpoises killed has dropped from an 
estimated 368,000 animals in 1972 to an estimated 15,303 porpoises in 
1980.'' (H. R. Rep. No. 97-228 at 11 (1981)). The report explained that 
an amendment to MMPA section 101(a)(2) was being made to clarify that 
ZMRG ``is satisfied in the case of the purse seine fishery for 
yellowfin tuna by a continuation of the application of the best marine 
mammal safety techniques and equipment that are economically and 
technologically practicable.'' (H. R. Rep. No. 97-228 at 17) The ``best 
techniques'' approach was reaffirmed in 1984 when Congress reauthorized 
the MMPA (H. R. Rep. No. 98-758 at 8 (1984)).
    The House committee declined, however, to modify ZMRG for other 
commercial fisheries. The committee recognized that other fisheries 
(citing the foreign high seas salmon gillnet fishery as an example) had 
not developed new techniques and equipment for reducing incidental 
mortality. Therefore, the goal in MMPA section 101(a)(2) would remain 
unchanged for other commercial fisheries ``to stimulate new technology 
for reducing the incidental taking of marine mammals.'' (H. R Rep. No. 
97-228 at 17-18 (1981)).

MMPA Amendments of 1988 (Public Law No. 100-711, 102 Stat. 4755)

    In the Interim Exemption for Commercial Fisheries under MMPA 
section 114, 16 U.S.C. 1383a, Congress retained the ZMRG as an 
objective of a regime to govern interactions between marine mammals and 
commercial fishing operations other than the commercial yellowfin tuna 
fishery (H. R. Rep. No. 100-970 at 21 (1988), S. Rep. No. 100-592 at 16 
(1988)). The 1988 Amendments also required the Marine Mammal Commission 
to recommend guidelines to govern the incidental taking of marine 
mammals in the course of fishing operations after the interim exemption 
expired. The Commission's guidelines (Recommended Guidelines to Govern 
the Incidental Taking of Marine Mammals in the Course of Commercial 
Fishing Operations After October 1993, July 1990) maintained the ZMRG 
as an important component of the MMPA, but did not present additional 
insight into the meaning of insignificant levels approaching a zero 
mortality and serious injury rate. The Commission's guidelines provided 
a quantitative approach for evaluating whether or not marine mammal 
mortality was having a negligible effect on the affected population and 
included an impact whose effect lasted for less than one year or one 
that would cause less than a 10 percent increase in time it would take 
a depleted stock to reach its maximum net productivity level. The first 
of these two criteria may be appropriate for a one-time activity; 
however, commercial fishing is repeated annually, and some level of 
incidental mortality is likely to continue after one year. The second 
criterion, no more than a 10 percent delay in recovery of a depleted 
stock, addresses the annual level of incidental mortality and serious 
injury to assess the effects of continuing fishery interactions with 
marine mammals. However, this approach applies to the recovery of 
depleted stocks, and not all stocks are depleted. Consequently, this 
criterion would not necessarily be applicable to all stocks, and an 
additional criterion would have to apply to those cases.

International Dolphin Conservation Act of 1992 (Public Law No. 102-523, 
106 Stat. 3425)

    Congress passed the International Dolphin Conservation Act of 1992, 
which, among other things, prohibited U.S. vessels from setting nets on 
or to encircle dolphins to catch tuna and limited dolphin mortality 
from U.S. vessels to specific numbers for specific periods. In doing 
so, Congress reversed its course for reducing dolphin mortality in the 
ETP and, thus, cast some question on legislative intent regarding the 
ability of the ``best

[[Page 40890]]

available technology'' standard to meet the ZMRG.

MMPA Amendments of 1994 (Public Law No. 103-238, 108 Stat. 532)

    The legislative history for the MMPA amendments of 1994, which 
enacted MMPA section 118, reiterates the statutory language for ZMRG 
and does not expand on what it means (See H. R. Rep. No. 103-439, at 37 
(1994); S. Rep. No. 103-220 at 16 (1994)). Importantly, these 
amendments included a specific date (7 years following enactment or 
April 30, 2001) by which commercial fisheries had to reduce incidental 
mortality and serious injury to insignificant levels approaching a zero 
mortality and serious injury rate.

The International Dolphin Conservation Program Act of 1997 (Public Law 
No. 105-42, 111 Stat. 1122)

    Congress amended the MMPA again in 1997 to establish a new dolphin 
conservation program for the tuna fishery. The House Committee on 
Resources noted that, while current law focuses on 
techniques of reducing dolphin bycatch, the alternative fishing 
practices exacerbate fishing pressure on other sensitive marine 
populations. (H. R. Rep. No. 105-74, Part I at 15 (1997))
    This set of amendments to the MMPA did not specifically mention 
``insignificant levels approaching a zero mortality and serious injury 
rate''. It did, however, authorize entering into a binding 
international agreement to establish a total dolphin mortality limit of 
5,000 with an objective of progressively reducing dolphin mortality to 
a level approaching zero by setting annual limits (see MMPA section 
302(1)). Furthermore, the 1997 amendments established stock-specific 
annual mortality limits (starting in 2001) of less than or equal to 0.1 
percent of the minimum population estimate of the stock (section 
302(3)). This stock-specific mortality limit is the mathematical 
equivalent of 10 percent of PBR for a cetacean stock of unknown or 
depleted status when using the default values for net productivity and 
the recovery factor.
    The 1997 amendments required that all sets on dolphins must cease 
for the applicable fishing year if a mortality limit is exceeded and 
required the establishment of a per vessel annual mortality limit (MMPA 
section 302(4) and (7)); thus, high levels of mortality by a single 
vessel would not affect operations of other vessels that are not taking 
too many dolphins. Furthermore, the goal of eliminating dolphin 
mortality beyond the insignificant levels must be accomplished through 
a system of incentives rather than regulation of fishing activity (MMPA 
Section 302(8)). As a result of these changes, the MMPA now includes a 
regulatory framework for reducing mortality to levels below dolphin 
mortality limits (which may be interpreted to be ``insignificant 
levels'') and includes further reductions to meet the ultimate goal of 
eliminating dolphin mortality to be accomplished through incentives.
    Although the 1997 amendments made no explicit reference to the 
ZMRG, at least one constituent group noted the relationship between 
stock-specific mortality limits and the long-term goal of reducing 
incidental mortality and serious injury to a zero rate. In their 
written statement during hearings on the 1997 amendments, the Center 
for Marine Conservation (now known as the Ocean Conservancy) stated, 
``While any human-caused dolphin mortality is undesirable and 
recognizing that our objective is to eliminate dolphin mortality, the 
great majority of independent and government marine mammal scientists 
consider mortality levels of less that 0.1 percent to have a 
``negligible impact'' on the dolphin stocks and to meet the MMPA's zero 
mortality rate goal.'' (Transcript of the ``Hearing Before the 
Subcommittee on Oceans and Fisheries of the Committee on Commerce, 
Science and Transportation, United States Senate, One Hundred Fifth 
Congress, First Session, May 14, 1997).

ZMRG Concepts in Use

    On June 16, 1995 (60 FR 31666), NMFS proposed regulations to 
implement provisions of MMPA section 118. In that proposed rule, NMFS 
stated that a fishery could have satisfied the requirements of ZMRG in 
two ways. First, mortality and serious injury of marine mammals 
incidental to that fishery, in combination with all other fisheries, 
was no more than 10 percent of PBR of the affected stocks of marine 
mammals. Second, in those cases where total fishery mortality was above 
10 percent of PBR for one or more stocks of marine mammals, a single 
fishery was responsible for the removal of one percent or less of the 
PBR of any stock of marine mammals. The definition of the ZMRG in the 
proposed rule was related to proposed regulations for classifying 
fisheries so that only those fisheries that had achieved insignificant 
levels of incidental mortality and serious injury would be in Category 
III. NMFS related ZMRG and fishery classification in this manner 
because take reduction plans are the mechanism to reduce incidental 
mortality and serious injury to insignificant levels, and Category III 
fisheries are not subject to take reduction plans.
    When NMFS published its final rule (60 FR 45086, August 30, 1995) 
implementing MMPA section 118, these provisions related to the ZMRG 
were omitted. NMFS noted in the final rule only that the definition of 
ZMRG had been removed because the agency was still considering what 
would be an appropriate goal.
    The proposed rule using 10 percent of PBR was based upon 
preliminary simulation models investigating a level of mortality and 
serious injury that would not delay recovery of a depleted stock by 
more than 10 percent of the time it would take to recover if the 
incidental mortality were not occurring. NMFS used these preliminary 
models as the scientific background for its description of fisheries in 
stock assessment reports as to whether the level of incidental 
mortality and serious injury rate of the affected stock of marine 
mammals ``is insignificant and is approaching a zero mortality and 
serious injury rate.'' (MMPA section 117(a)(4)(D); 16 U.S.C. 
1386(a)(4)(D))
    Subsequent, more complete, simulation modeling revealed that annual 
mortality of 10 percent of a stock's PBR or less would, indeed, not 
delay the stock's recovery by more than 10 percent; however, for some 
stocks, particularly those endangered species with a recovery factor of 
0.1, a higher level of mortality would not delay recovery by more than 
10 percent. Thus, it appeared that the use of 10 percent of PBR in a 
final rule could result in over-regulation of some fisheries.
    Although it was not used in a regulatory program, NMFS continues to 
use a value of 10 percent of a stock's PBR as a criterion in the stock 
assessment reports to evaluate whether incidental mortality is at 
insignificant levels approaching a zero mortality and serious injury 
rate and will continue to do so until a final rule defining the 
threshold for insignificant levels of mortality and serious injury is 
completed. The stock assessment reports have no regulatory role; 
therefore, a conservative value of ``insignificant levels'' within 
these reports has no adverse impact on fisheries.

Application of ZMRG to Reducing Bycatch in Commercial Fisheries

    To evaluate whether or not commercial fisheries have attained the 
ZMRG, NMFS must consider at least two questions related to MMPA section 
118(b) and (f). First, what is the level of mortality and serious 
injury for each stock of marine mammals that could be

[[Page 40891]]

considered an insignificance threshold (Tins), below which 
incidental mortality and serious injury can be considered 
insignificant? Second, if a fishery or group of fisheries has a level 
of mortality greater than this Tins and available 
technologies would not allow further reductions within the feasible 
economics of that fishery, could NMFS determine that these fisheries 
had met the ZMRG?

Insignificance Threshold

    NMFS is considering three options to estimate Tins for 
each stock of marine mammals. When incidental mortality and serious 
injury is below Tins for a stock of marine mammals, then that level of 
mortality and serious injury would be insignificant to the affected 
stock. Table 1 summarizes each option and identifies arguments for and 
against each option. For each option, Table 1 also summarizes the 
number of fisheries that would have mortality and serious injury above 
the Tins for one or more stocks of marine mammals, and it 
summarizes the number of marine mammal stocks for which the Tins 
would be exceeded by mortality and serious injury incidental to 
commercial fisheries.
    Each option is a mathematical equation that may not be applicable 
to every stock of marine mammals. These equations may use default or 
assumed values for population growth rates, and these values may not 
reflect the actual growth rates for the stock. Therefore, NMFS would 
evaluate the Tins for each stock of marine mammals and 
adjust them as necessary to account for case-specific situations, such 
as declining or very small populations.

Available Technology and Economic Feasibility

    NMFS must also consider options for applying the available 
technology and economic feasibility considerations required by section 
118(f)(2) of the MMPA for reducing incidental take to insignificant 
levels of mortality and serious injury approaching a zero mortality and 
serious injury rate. A first option would be to accept the statement in 
MMPA section 118(b)(1) that fisheries shall reduce incidental mortality 
and serious injury of marine mammals to insignificant levels 
approaching a zero mortality and serious injury rate. Using this 
approach, available technology and economic feasibility would not be 
considered in evaluating whether or not a fishery had achieved the 
ZRMG. However, available technology and economic feasibility would have 
to be considered in developing and implementing a take reduction plan 
to reduce incidental mortality and serious injury toward insignificant 
levels approaching a zero mortality and serious injury rate.
    A second option would be to incorporate available technology and 
economic feasibility into an initial assessment of whether or not 
fisheries had achieved the ZMRG by the statutory due date. If 
incidental mortality and serious injury by a commercial fishery was 
less than the PBR of all marine mammals but exceeded Tins of 
one or more stocks on April 30, 2001, and existing technology would not 
allow further reductions of incidental mortality and serious injury in 
an economically feasible manner, then that fishery would have complied 
with the deadline specified in the MMPA. If, however, existing 
technology would allow further reduction in mortality within the 
constraints of economic feasibility, then that fishery would have to 
apply the appropriate technology to satisfy the ZMRG. This option would 
also allow for future development of technologies to continue to reduce 
incidental mortality and serious injury to insignificant levels 
approaching zero, and a fishery with incidental mortality above 
Tins would have to incorporate newly developed technologies 
if such incorporation was economically feasible.

Comments Solicited

    In the discussion above, NMFS has described a range of options for 
various aspects of the implementation of the ZMRG. NMFS solicits public 
comments about any of these options or suggestions of other options for 
consideration in a proposed rule. NMFS also solicits information from 
the public that would support the choice among options for implementing 
the ZMRG.

                               Table 1.--Options for the Insignificance Threshold
----------------------------------------------------------------------------------------------------------------
                                                                                          Option 3  0.1 percent
                                       Option 1  10 percent of    Option 2  10 percent     Nmin\1\ (cetaceans);
                Option                           PBR               Delay in Recovery         0.3 percent Nmin
                                                                                               (pinnipeds)
----------------------------------------------------------------------------------------------------------------
Definition                             Mortality and serious    Mortality and serious    Mortality and serious
                                        injury is less than 10   injury would not cause   injury is less than
                                        percent of the PBR       more than a 10 percent   0.1 percent of the
                                        level.                   delay in recovery..      minimum population
                                                                                          estimate of a stock of
                                                                                          cetaceans and 0.3
                                                                                          percent of a stock of
                                                                                          pinnipeds
                                       .......................  Mortality and serious    Mortality and serious
                                                                 injury is less than      injury would not cause
                                                                 0.2 percent of the       more than a 5 percent
                                                                 minimum population       delay in recovery
                                                                 estimate of a stock
                                                                 for cetaceans and 0.6
                                                                 percent for
                                                                 pinnipeds\2\.
                                       .......................  Would maintain           Would maintain
                                                                 populations at or        populations at or
                                                                 above 90 percent of      above 95 percent of
                                                                 the carrying capacity.   the carrying capacity
Pros                                   Familiar to NMFS'        Easy to calculate        Easy to calculate
                                        constituents because     because it is            because it is
                                        this definition was      equivalent to the PBR    equivalent to the PBR
                                        proposed in the 1995     equation using a         equation using a
                                        proposed rule            recovery factor of 0.1   recovery factor of
                                        implementing section     for all stocks.          0.05 for all stocks
                                        118 of the MMPA (60 FR
                                        31666, June 16, 1995).
                                       Easy to calculate and    Can be calculated        Can be calculated
                                        explain because it is    through modeling to      through modeling to
                                        based on the well        take other population    take other population
                                        understood PBR           parameters into          parameters into
                                        equation.                account (e.g.,           account (e.g.,
                                                                 severely declining       severely declining
                                                                 stock).                  stock)

[[Page 40892]]

 
                                       Consistent with current  Consistent with the      Consistent with ETP
                                        definition for           Marine Mammal            dolphin standard for
                                        Category III fishery,    Commission's             Tins, which is an
                                        such that the List of    recommendation for       ``insignificant''
                                        Fisheries would          determining              metric specifically
                                        provide an easy metric   ``negligible impact''    defined by Congress
                                        for which fisheries      related to the take of
                                        have met Tins.           threatened or
                                                                 endangered marine
                                                                 mammals\3\.
                                       .......................  Consistent application   Consistent application
                                                                 across all stocks        across all stocks
                                                                 because the recovery     because the recovery
                                                                 factor is set as the     factor is set as the
                                                                 same number for all      same number for all
                                                                 stocks..                 stocks
                                       .......................  .......................  Tins is always less
                                                                                          than PBR level
                                       .......................  .......................  Would allow for
                                                                                          flexibility in
                                                                                          relationship between
                                                                                          Tins and negligible
                                                                                          impact under
                                                                                          101(a)(5)(E), such
                                                                                          that negligible impact
                                                                                          could be greater or
                                                                                          less than Tins
                                                                                          depending on
                                                                                          population parameters
                                                                                          circumstances
Cons                                   May lead to overly       For endangered species,  May be perceived as
                                        conservative levels of   Tins = PBR level,        providing less
                                        protection for certain   which may be perceived   protection for
                                        endangered species,      as providing less        endangered stocks than
                                        whose PBR levels are     protection for           for other stocks, even
                                        already set at           endangered stocks than   though it reduces the
                                        biologically             for other stocks, even   PBR for endangered
                                        insignificant levels.    though the PBR for       species (already
                                                                 endangered stocks is     insignificant due to
                                                                 already set at           the use of a recovery
                                                                 biologically             factor or 0.1) by 50
                                                                 insignificant levels.    percent
                                       .......................  Not consistent with the  May be too restrictive
                                                                 definition of a          for stocks at their
                                                                 Category III fishery,    optimum sustainable
                                                                 such that the            population level by
                                                                 definition of a          setting the Tins for
                                                                 Category III fishery     such stocks at 5
                                                                 on the List of           percent of their PBR
                                                                 Fisheries would need     level.
                                                                 to be changed to
                                                                 provide an easy metric
                                                                 for which fisheries
                                                                 have met Tins.
                                       .......................  Does not allow for       .......................
                                                                 flexibility in the
                                                                 relationship between
                                                                 Tins and section
                                                                 101(a)(5)(E) of the
                                                                 MMPA, such that other
                                                                 population parameters
                                                                 could not be taken
                                                                 into account in making
                                                                 a negligible impact
                                                                 determination,
                                                                 potentially making it
                                                                 illegal for certain
                                                                 fisheries to operate.
----------------------------------------------------------------------------------------------------------------


   Number of Category I and II Fisheries interacting with one or more
  stocks of marine mammals for which incidental mortality exceeds Tins
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Atlantic                                                18     18     18
Pacific                                                  8      8      8
Alaska                                                  13      3      6
------------------------------------------------------------------------


  Number of Marine Mammal Stocks for which incidental mortality exceeds
                                  Tins
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Atlantic                                                15     13     14
Pacific                                                 11      8     10
Alaska                                                   6      2      4
------------------------------------------------------------------------
1. Nmin is an abbreviation for the minimum estimated abundance for a
  population stock of marine mammals.
2. The calculations for estimating the delay in recovery were based upon
  the PBR equation and NMFS's default values for one-half of the maximum
  net productivity rate (Rmax). For pinnipeds the default value for one-
  half of Rmax is 6 percent, and for cetaceans, the default value is 2
  percent.
3. Marine Mammal Commission, Recommended Guidelines to Govern the
  Incidental taking of marine mammals in the Course of Commercial
  Fishing Operations after October 1993, July 1990, at 30.


    Dated: July 1, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 03-17240 Filed 7-8-03; 8:45 am]
BILLING CODE 3510-22-S