[Federal Register Volume 69, Number 138 (Tuesday, July 20, 2004)]
[Rules and Regulations]
[Pages 43338-43345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16355]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030630163-4205-03, 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: Final rule.

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SUMMARY: The Marine Mammal Protection Act (MMPA) was enacted in 1972 
with the ideal of eliminating mortality and serious injury of marine 
mammals incidental to commercial fishing operations. In 1994, Congress 
amended the MMPA and established a requirement for fisheries to reduce 
incidental mortality and serious injury of marine mammals to 
insignificant levels approaching a zero rate. This requirement is 
commonly referred to as the Zero Mortality Rate Goal (ZMRG). To 
implement the ZMRG, NMFS must establish a threshold level for mortality 
and serious injury to meet this requirement. This final rule 
establishes an insignificance threshold as 10 percent of the Potential 
Biological Removal level (PBR) of a stock of marine mammals.

DATES: Effective August 19, 2004.

ADDRESSES: A copy of the Environmental Assessment prepared for this 
action may be obtained by writing P. Michael Payne, Chief, Marine 
Mammal Conservation Division, Office of Protected Resources, NMFS 
(PR2), 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Tom Eagle, Office of Protected 
Resources, NMFS, Silver Spring, MD (301) 713-2322, ext. 105, or email 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    Information related to this final rule, including the associated 
environmental assessment (EA), public comments on related actions, 
guidelines for differentiating serious and non-serious injury, and the 
guidelines for preparing marine mammal stock assessment reports, is 
available on the Internet at http://www.nmfs.noaa.gov/pr/ (see ``Recent 
News and Hot Topics'').

Background

    On July 9, 2003 (68 FR 40888), NMFS published an advance notice of 
proposed rulemaking (ANPR) describing options for defining provisions 
of the ZMRG, including the requirement under the MMPA for commercial 
fisheries to reduce incidental mortality and serious injury of marine 
mammals to insignificant levels approaching a zero mortality and 
serious injury rate. On April 29, 2004, NMFS issued a proposed rule (69 
FR 23477) defining an insignificance threshold as the upper limit of 
annual incidental mortality and serious injury of marine mammal stocks 
by commercial fisheries considered to be insignificant levels 
approaching a zero mortality and serious injury rate. An insignificance 
threshold is estimated as 10 percent of the PBR for a stock of marine 
mammals. If certain parameters (e.g., maximum net productivity rate or 
the recovery factor in the calculation of the stock's PBR) can be 
estimated or otherwise modified from default values, the Assistant 
Administrator for Fisheries (Assistant Administrator) may use a 
modification of the number calculated from the simple formula for the 
insignificance threshold. The Assistant Administrator may also use a 
modification of the simple formula when information is insufficient to 
estimate the level of mortality and serious injury having an 
insignificant effect on the affected population stock and provide a 
rationale for using the modification. The preamble to the proposed rule 
described the ZMRG under MMPA section 118(b), in simple form, to 
include the following:
    (1) A target for reducing incidental mortality and serious injury 
and a deadline by which the target is to be achieved;
    (2) A statement to exclude fisheries achieving and maintaining such 
levels of incidental mortality from the requirement to further reduce 
incidental mortality and serious injury;
    (3) A requirement for submitting a report to Congress describing 
fisheries' progress toward the target and noting fisheries for which 
additional information is required to assess levels of incidental 
mortality and serious injury; and
    (4) A mechanism (the TRP process) to reduce levels of incidental 
mortality and serious injury for fisheries not meeting the target. The 
economics of the fishery, availability of existing technology, and 
existing fishery management plans must be taken into account in the 
long-term goal of a TRP to reduce incidental mortality and serious 
injury of marine mammals to insignificant levels approaching a zero 
morality and serious injury rate.
    The preamble to the proposed rule also addressed key issues related 
to the implementation of the ZMRG. The key issues were summarized under 
headings posing the following questions:
    (1) What is an insignificant level of incidental mortality and 
serious injury;
    (2) Why is the deadline important;
    (3) How will incidental mortality and serious injury levels 
approach a zero rate; and
    (4) Would a fishery be closed if it missed the target mortality and 
serious injury level by the deadline?
    Details of the options NMFS considered for implementing the ZMRG 
and a detailed description of the implementation of the ZMRG are 
included in the ANPR and proposed rule. The ANPR summarized the 
legislative history of the ZMRG within the MMPA. These descriptions are 
not repeated in the preamble to this final rule.

Comments and Responses

    NMFS received letters with comments from 12 organizations or 
agencies, five of which were from the conservation community, five were 
from the fishing industry, and two were from governmental agencies. 
Several of the letters appended comments on the ANPR. Comments on the 
ANPR were summarized, and responses to these summary comments were 
included, in the preamble to the proposed rule; these comments and 
responses are not repeated here.
    Comment 1: We support the proposed threshold of 10 percent of the 
PBR level as the most effective means to meet the ZMRG.

[[Page 43339]]

    Response: NMFS has used the proposed threshold of 10 percent of PBR 
in this final rule.
    Comment 2: In addition to limiting incidental mortality and serious 
injury to levels no higher than 10 percent of a stock's PBR, the 
definition of ZMRG should limit takes to levels no higher than current 
levels.
    Response: As NMFS explained in the proposed rule in response to 
comment 68, setting allowable mortality levels no higher than current 
levels assumes the reported or estimated number of takes represents all 
incidental mortality and serious injury. Observer data are available 
only for a few selected fisheries; therefore, current levels of 
incidental mortality and serious injury cannot be verified 
independently and may exceed current estimates. In addition, the MMPA 
states once a fishery has achieved target levels of incidental 
mortality and serious injury, the fishery does not have to further 
reduce such mortality and serious injury. If target levels were a 
sliding scale, a fishery could have achieved its target in one year, 
and in a later year, when the target had been reduced, the fishery 
would again be above target mortality and serious injury levels. Such 
an approach does not lend itself to feasible implementation. Although 
NMFS does not propose a sliding scale to ratchet down stock-specific 
insignificant thresholds over time, insignificance thresholds could 
change as a result of new abundance or productivity estimates. (See 69 
FR 23477, 23489, April 29, 2004.)
    Comment 3: NMFS should periodically revisit the definition of ZMRG 
for each population to ensure takes continue at insignificant levels 
approaching a zero mortality and serious injury rate.
    Response: NMFS will continue to periodically review and revise the 
stock assessment reports as required by the MMPA. Among other things, 
stock assessment reports must include an analysis whether the rate of 
incidental mortality and serious injury is insignificant and 
approaching a zero mortality and serious injury rate.
    Comment 4: A restrictive definition of the ZMRG insignificance 
threshold is biologically unnecessary.
    Response: The biological necessity of the ZMRG is not an issue for 
this rulemaking. The ZMRG is a requirement of the MMPA; therefore, NMFS 
must implement it. The stock-specific insignificance threshold 
quantifies the target contained in MMPA section 118.
    Comment 5: The PBR is itself a conservative methodology for 
computing acceptable levels of removal.
    Response: The PBR calculations are appropriately conservative as a 
basis for management decisions considering the levels of uncertainty 
typically found in the data supporting marine mammal-fishery 
interactions. PBR is not, however, an acceptable long-term goal for 
reducing mortality and serious injury of marine mammals incidental to 
commercial fishing operations because MMPA section 118 states such a 
long-term goal should be insignificant levels approaching a zero 
mortality and serious injury rate.
    Comment 6: The proposed ZMRG threshold is unnecessary for marine 
mammal stocks to achieve OSP and should be redrafted by the agency as a 
stimulant for technology, rather than a conservative, rigidly defined 
point-specific objective.
    Response: The insignificance threshold represents a target level of 
mortality and serious injury of marine mammals incidental to commercial 
fishing to implement the ZMRG as required under the MMPA. Accordingly, 
it serves as a stimulus for the development of new technologies and 
fishing practices through the TRP process.
    Comment 7: NMFS should avoid a formulaic approach to establishing 
ZMRG and should reserve discretion to avoid imposing requirements to 
develop take reduction plans when available scientific information do 
not support this process.
    Response: In accordance with MMPA section 118(b)(1), the ZMRG 
includes a target level of mortality and serious injury incidental to 
commercial fishing. Because abundances and trends of marine mammal 
stocks vary widely, a formula is the most simple and robust approach to 
defining the target. The process to achieve target levels of incidental 
mortality and serious injury (i.e., TRPs under MMPA section 118(f)) 
must take into consideration the best scientific information available 
from the stock assessment reports, any substantial new information, as 
well as other considerations. Therefore, NMFS will apply these 
standards in developing and implementing TRPs to reduce incidental 
mortality and serious injury.
    Comment 8: The proposed definition of ZMRG as a fixed numerical 
point is inconsistent with the legislative history of this provision of 
law.
    Response: The commenter does not explain how the proposed 
definition is inconsistent with the legislative history. However, the 
proposed definition of the insignificance threshold to implement the 
ZMRG is a formula rather than a fixed numerical point. Consequently, 
the threshold can be updated as new information becomes available 
(e.g., new abundance estimates, information allowing a stock-specific 
estimate, rather than a generally applied default, for the maximum net 
productivity rate, or precise, unbiased mortality estimates allowing 
the recovery factor to be changed from a default value) ; thus, it is 
consistent with principles of adaptive management as well as the MMPA 
provisions and legislative history related to the ZMRG.
    Comment 9: Any human-caused marine mammal mortality is undesirable, 
and the ideal objective of any fisheries management plan should be to 
work to eliminate such loss. We are concerned NMFS seems to take a 
contradictory stance in allowing the ZMRG to become an upwardly moving 
target if and when marine mammal populations increase.
    Response: NMFS agrees eliminating incidental mortality and serious 
injury is an ideal goal of the MMPA. However, as NMFS explained in the 
proposed rule in response to comment 43, NMFS realizes the number of 
deaths of marine mammals incidental to commercial fishing could 
increase as numbers of marine mammals increase. As long as the 
mortality and serious injury rate (as a function of population size) 
decreases, an increase in the number of marine mammal deaths per year 
would still be consistent with the MMPA's goal of ``approaching a zero 
mortality and serious injury rate.'' A rate based upon mortality and 
serious injury as a function of PBR (which, in turn, is based largely 
upon the abundance of the stock) addresses the impact of the mortality 
and serious injury on the affected stock of marine mammals and, 
therefore, is biologically relevant. NMFS is using a rate based upon 
population size or annual production (which is a function of population 
size) within the ZMRG. (See 69 FR 23477, 23466, April 29, 2004.)
    Comment 10: If a fishery has achieved ZMRG target levels of 
incidental mortality and serious injury, further reduction in mortality 
rates should not be precluded. Thus, achieving zero mortality and 
serious injury rates would remain the ideal objective.
    Response: NMFS agrees the elimination of mortality and serious 
injury of marine mammals remains the ideal goal. As long as fishery-
caused mortality and serious injury remain below the insignificance 
thresholds for stocks of marine mammals, then the affected fisheries 
will not be required to further reduce mortality and serious injury 
(see MMPA section 118(b)(2)). However, NMFS will continue to work

[[Page 43340]]

with the fishing industry through incentive and improvement of 
available technologies and methods even after mortality and serious 
injury in a particular fishery is reduced to the insignificance 
thresholds for stocks of marine mammals.
    Comment 11: NMFS correctly interpreted the MMPA's mandate of 
technology and economic factors should not being considered in setting 
ZMRG under MMPA section 118(b)(1) or in establishing the 6-month 
requirement for TRPs to reduce mortality and serious injury in 
strategic stocks to PBR levels. We realize technology and economic 
factors may be taken into account when determining the appropriate 
measures to implement a TRP to reduce mortality and serious injury to 
insignificant levels approaching a zero rate.
    Response: NMFS agrees with this comment. The second sentence is 
based on the requirement to reduce, within 5 years of its 
implementation, mortality and serious injury of marine mammals 
incidental to commercial fishing operations to insignificant levels 
approaching a zero mortality and serious injury rate, taking into 
account the economics of the fishery, the availability of existing 
technology, and existing state and regional fishery management plans.
    Comment 12: In contrast to the ANPR, the proposed rule seems to 
have appropriately moved the analysis of the ``feasible economics'' of 
the fishery to the TRT process rather than the initial determination of 
whether ZMRG has been reached by the fishery. While we believe this is 
an improvement upon the approach outlined in the ANPR, we remain 
concerned the current proposal fails to include ``approaching zero'' 
within its definition of ZMRG.
    Response: As noted in the proposed rule in responses to comments 
received on the ANPR, the ZMRG does not contain a 2-part target for 
reducing incidental mortality and serious injury (i.e., insignificant 
levels and approaching a zero rate). Rather, ``approaching a zero 
mortality and serious injury rate'' modifies the term ``insignificant 
levels''. See the response to comment 42 in the proposed rule (69 FR 
23477, 23485, April 29, 2004).
    Comment 13: We agree accounting for available technology and 
economic feasibility should occur during the TRP process rather than in 
determining whether a given level of incidental mortality and serious 
injury is, indeed, insignificant to the affected marine mammal 
population. If given a clear goal, experience has demonstrated take 
reduction teams can work cooperatively to devise the necessary 
technologies and secure the funds to implement those technologies.
    Response: NMFS agrees.
    Comment 14: A review of the legislative history of the ZMRG concept 
shows any NMFS rule using ZMRG as a regulatory standard designed to 
return marine mammal populations to their pristine levels is contrary 
to Congressional intent. Congress did not intend to significantly 
curtail or shut down fisheries as long as fisheries are using the best 
available technology. Although Congress sought to encourage the 
development of new technology to reduce incidental interactions with 
marine mammals, Congress has also stated in no uncertain terms ZMRG is 
satisfied by the use of the best available technology technologically 
and economically feasible to employ.
    Response: The insignificance thresholds for stocks of marine 
mammals are the target level of mortality and serious injury. Any 
subsequent regulatory action would come as the result of a TRP (see 
MMPA section 118(b)(4)), for which the long-term goal must take into 
account economics of the affected fisheries and available technologies 
(see MMPA section 118(f)(2)). In 1981, Congress adopted a ``best 
available technology'' standard for the purse seine fishery for yellow-
fin tuna in the eastern tropical Pacific Ocean (ETP), but Congress did 
not modify the ZMRG for other commercial fisheries. The House Committee 
report recognized other fisheries had not developed new techniques and 
equipment for reducing incidental mortality (H.R. Rep. No 97-228 at 17-
18 (1981)). Furthermore, Congress has used total dolphin mortality 
limits historically in the ETP and in 1997 established an annual cap of 
5,000 dolphin deaths and stock-specific mortality limits of 0.1 percent 
of the minimum abundance estimate of the stock. This stock-specific 
mortality limit is the mathematical equivalent of 10 percent of PBRs 
for the affected stocks of dolphins in the ETP. A more complete 
discussion of the legislative history of the ZMRG may be found in the 
ANPR (68 FR 40888, July 9, 2003) under the heading ``History of the 
ZMRG''.
    Comment 15: Consistent with the original intent and policy of 
Congress in 1972, the ZMRG threshold should not be used to shut down or 
significantly curtail the activities of commercial fishing.
    Response: By defining an insignificance threshold in this final 
rule, NMFS has established a target level of mortality and serious 
injury of marine mammals incidental to commercial fishing operations. 
MMPA section 118(b)(4) requires, where incidental mortality and serious 
injury exceed this level, NMFS to take appropriate action under MMPA 
section 118(f), which describes the development and implementation of 
TRPs. In the long-term goal of TRPs to reduce incidental mortality and 
serious injury to levels consistent with the ZMRG, NMFS must take into 
account fishery economics and existing technology. Thus, the ZMRG 
threshold is not defined in such a manner to shut-down or significantly 
curtail the activities of commercial fishing simply because a fishery 
exceeds the threshold.
    The insignificance thresholds for stocks of marine mammals are the 
lower limit to which fisheries can be regulated to reduce incidental 
mortality and serious injury of marine mammals (see MMPA section 
118(b)(2)). An examination of the criteria used to classify fisheries 
and the current list of fisheries shows most fisheries (those in 
Category III) have already met the requirements of the ZMRG and are not 
required to further reduce incidental mortality and serious injury.
    Comment 16: We propose ZMRG should be satisfied for species that 
are not endangered, threatened, or depleted if the fishery is employing 
the best available technology that is economically and technologically 
feasible, provided incidental mortality and serious injury in the 
fishery does not exceed the PBR. This proposed definition is fully 
consistent with the MMPA.
    Response: MMPA section 118(b)(1) requires commercial fisheries to 
reduce incidental mortality and serious injury of marine mammals to 
insignificant levels approaching a zero mortality and serious injury 
rate. MMPA section 118(f)(2) provides the short-term goal of TRPs to 
reduce incidental mortality and serious injury of marine mammals to 
levels less than PBR and a separate, long-term goal to reduce 
incidental mortality and serious injury to insignificant levels 
approaching a zero mortality and serious injury rate, taking into 
account listed factors. Therefore, the approach proposed in this 
comment is inconsistent with the MMPA.
    Comment 17: With the International Dolphin Conservation Program Act 
(IDCPA), Congress not only established an overall dolphin mortality 
limit, it also set stock-specific dolphin mortality limits. These 
limits were put into place, and became binding, irrespective of the 
current state of technological development.
    Response: NMFS agrees.

[[Page 43341]]

    Comment 18: In passing the IDCPA, Congress distanced itself from a 
definition of ZMRG solely equated with technological advances, and NMFS 
should not restrict the proposed definition of ZMRG for US commercial 
fisheries on the basis of ``feasible technology''.
    Response: As previously provided in responses to other comments, 
NMFS does not use feasible technology in the determination of whether 
incidental mortality and serious injury exceed the insignificance 
threshold, but the availability of existing technology remains a 
consideration in the long-term goal of TRPs as provided in MMPA section 
118(f)(2).
    Comment 19: Congress would not wish to see the ZMRG used as a 
target from which there will be no improvement, rather the ZMRG should 
serve as an initial mechanism by which mortality and serious injury 
levels can be improved. ZMRG should be used within the TRPs to 
encourage the development of risk-averse fishing techniques, and it 
should not allow for any increase in levels of mortality and serious 
injury in a given fishery. Therefore, the proposed ``upward sliding 
scale'' for ZMRG is at odds with Congressional intent.
    Response: As noted in the response to comment 10, a stock's 
insignificance threshold identifies the limit to which fisheries would 
be subject to TRPs and resulting regulation for reducing mortality and 
serious injury of marine mammals. Additional reductions could occur 
through incentive and outreach. Incidental mortality and serious injury 
at or below levels identified by stocks' insignificance thresholds 
would be insignificant to the affected stock of marine mammals and 
would be a rate (mortality and serious injury as a function of 
population size) so small as to be ``approaching a zero mortality and 
serious injury rate''. Thus, this final rule is consistent with the 
MMPA and with Congressional intent.
    Comment 20: Although NMFS included an option within the ANPR to 
take economic feasibility and the availability of technology into 
account in determining whether mortality and serious injury were below 
the insignificance threshold, the proposed rule did not include this 
option. NMFS should make this point explicit in the final rule.
    Response: NMFS explicitly describes how these factors are used in 
the responses to comments and under the heading ``The Final Rule''.
    Comment 21: We have concerns with NMFS' proposed definition because 
it leaves considerable discretion in the hands of the Assistant 
Administrator. If this provision is limited to making changes in the 
default PBR variables and is based upon better scientific data, such 
flexibility may be lawful. If this provision is used to mis-categorize 
a fishery's attainment of ZMRG based on political or other non-
scientific data, it would be unlawful.
    Response: The insignificance threshold is to be determined based on 
an estimate of the PBR level for a stock of marine mammals; however, 
the threshold can be modified when such a modification is biologically 
sound and consistent with the MMPA to do so. The definition of 
insignificance threshold provides the Assistant Administrator with 
discretion if certain parameters in determining the PBR level can be 
estimated or otherwise modified from default values based on available 
scientific information. In most cases, this discretion would likely 
result in a decrease of the insignificance threshold in cases such as a 
small or declining stock of marine mammals. For example, scientists 
have developed a population model for Hawaiian monk seals more 
sophisticated and based upon more data than the simple PBR approach. 
Therefore, the use of the more sophisticated model to assess the 
significance of human-caused mortality would be more appropriate than 
the use of the PBR model. Hawaiian monk seals are a small, declining 
population, and known human-caused mortality and serious injury is 
insufficient to cause the decline. Therefore, one of the basic 
assumptions of the PBR approach (i.e., the population would grow if 
human-caused mortality and serious injury was below the calculated PBR) 
is violated. Consequently, a PBR-based approach for estimating an 
insignificant level of fishery-caused mortality and serious injury 
would be inappropriate and misleading.
    In addition, the insignificance threshold provides the Assistant 
Administrator discretion when information is insufficient to estimate 
the level of mortality and serious injury having an insignificant 
effect on the affected stock. The approach of comparing mortality and 
serious injury estimates to PBR, which is based on abundance estimates, 
assumes NMFS has adequate reliable information to estimate mortality 
and serious injury as well as abundance. The approach is consistent 
with MMPA section 118(b)(3), in which Congress recognized 
determinations under the ZMRG cannot be made without adequate reliable 
information. This subsection provides a requirement for submitting a 
report to Congress describing fisheries' progress toward the target of 
reducing incidental mortality and serious injury and requires NMFS to 
``note any commercial fishery for which additional information is 
required to accurately assess the level of incidental morality and 
serious injury of marine mammals in the fishery.''
    Comment 22: We are pleased NMFS is aware of the logistic model's 
limits and its application to small and declining populations and 
support making an adjustment to the simple calculation for declining or 
small populations.
    Response: Comment noted. See response to previous comment.
    Comment 23: The proposal to allow NMFS to modify the ZMRG formula 
is legally unsupportable and further violates Congressional intent.
    Response: See response to comment 21. The insignificance threshold 
provides the Assistant Administrator with discretion to deviate from a 
rote application of a simple formula under circumstances in which it 
would be biologically sound and consistent with the MMPA to do so.
    Comment 24: Stating observer coverage is available for only a few 
fisheries, NMFS concedes ``current levels of incidental mortality and 
serious injury cannot be verified independently and may exceed current 
estimates.'' NMFS may not rely on its failure to collect data necessary 
to manage fisheries and protect the environment as an excuse from its 
duties to collect the data. When the type and amount of bycatch is 
unknown, a recent study recommended at least 20-percent observer 
coverage is needed when the bycatch is a commonly caught species and 50 
percent is necessary for species caught rarely to accurately and 
precisely determine the total bycatch.
    Response: NMFS can design and implement monitoring programs only to 
the extent resources allow. Congress anticipated funds would be 
insufficient to collect all pertinent data immediately and established 
priorities for observer programs in MMPA section 118(d)(4). Congress 
also established priorities for developing and implementing TRPs (see 
MMPA section 118(f)(3)). Since 1994, NMFS has used these priorities to 
design and implement observer programs to support TRP development and 
implementation (for strategic stocks, including stocks listed under the 
ESA) and to collect additional information where mortality and serious 
injury of marine mammals are uncertain but are suspected to be highest. 
Thus, NMFS has implemented MMPA section 118 to the fullest extent 
resources would allow.
    Comment 25: Due to a lack of resources, there are a number of

[[Page 43342]]

fisheries about which we know little. Adequate information upon which 
to base a TRP and to evaluate it success is a vital part of the regime 
to govern interactions between marine mammals and commercial fishing 
operations. We hope we can help NMFS seek adequate funding for its work 
in this area.
    Response: Comment noted.
    Comment 26: The information available on the current level of 
incidental mortality and serious injury in Alaska fisheries is minimal 
and, thus, must be increased to provide more accurate estimates of 
incidental mortality. Specifically, this will require increased 
observer coverage for those fisheries having the greatest potential to 
cause incidental mortality and serious injury of marine mammals, and we 
strongly encourage NMFS to increase coverage as soon as possible.
    Response: NMFS' appropriations for implementing MMPA sections 117 
and 118 are fully used in existing programs based on statutory 
priorities. Existing observer programs are tied directly to existing 
take reduction plans. NMFS will continue to allocate resources based on 
statutory priorities. However, NMFS will not be able to implement 
large, new observer programs within the constraints of existing 
resources.
    Comment 27: Two factors should be thoroughly evaluated prior to the 
establishment of a take reduction team and development of a TRP: (1) 
Outdated estimates of incidental mortality and serious injury and (2) 
substantial uncertainty in the estimate of population abundance for 
marine mammals, particularly when a stock's insignificance threshold is 
in the single digits.
    Response: In accordance with the MMPA, each TRP shall include a 
review of the information in the final stock assessment report and any 
substantial new information. Reasonably accurate, reliable information 
on marine mammal abundance and stock structure and on mortality and 
serious injury incidental to commercial fisheries must be available to 
make the TRP process most effective and efficient. Such information 
also provides a basis for developing effective measures for the 
reduction of incidental mortality and serious injury.
    Comment 28: NMFS must consider the reliability of the available 
information. For example, NMFS is not required to implement a TRP based 
on highly unreliable estimates of marine mammal population sizes and 
fishery interaction rates. It would be arbitrary and capricious for 
NMFS to subject the Hawaii longline fishery to such a plan due to the 
lack of reliable information and the prevailing contrary scientific 
opinions.
    Response: See response to comment 27. Under MMPA section 117, each 
stock assessment report must be based on the ``best scientific 
information available.'' Therefore, NMFS must base development and 
implementation of TRPs on the best scientific information available in 
the stock assessment reports as well as substantial new information. In 
addition, NMFS has at this point proposed elevation of the Hawaii 
longline fishery in the 2004 List of Fisheries (LOF) from a Category 
III to a Category I fishery (69 FR 19365, April 13, 2004), and it has 
not published a final 2004 LOF to complete the proposed change. Upon 
completing the LOF, if the Hawaii longline fishery classification is 
elevated, NMFS must decide what priority to give development and 
implementation of a TRP for this fishery based on MMPA section 
118(f)(3).
    Comment 29: NMFS must reconsider and re-calibrate its mortality 
policy. NMFS' stock assessment report for the Hawaiian stock of false 
killer whales references unpublished 1998 guidelines apparently 
directing NMFS to classify in every instance of ingesting a hook, of 
hooking in the mouth or other body part, or of entanglement and release 
trailing gear for small cetaceans, as likely to result in mortality.
    Response: NMFS convened a workshop of experts in marine mammal 
biology and fishing technologies in April 1997. The results of this 
workshop included guidelines for differentiating serious and non-
serious injury of marine mammals incidental to commercial fishing 
operations, which were published as a NOAA Technical Memorandum. The 
publication process included scientific peer review. These guidelines 
represent a compilation of the best scientific information available at 
the time and have not been updated since 1997. Additional data, 
particularly on large whales, has been collected since the workshop was 
convened. When these additional data have been compiled and analyzed, 
NMFS will update the guidelines. The report of the workshop is 
available on the Internet (see Electronic Access).
    Comment 30: NMFS' population estimates are subject to a very high 
level of uncertainty. For example, numerous flaws in extrapolating from 
the limited population data known about the Hawaiian stock of false 
killer whales has been acknowledged for some time. The 2002 survey was 
conducted in Hawaiian waters between August and November, and anecdotal 
information indicates false killer whales exhibit seasonal behavior 
with peak abundance in Hawaiian waters believed to occur between June 
and August coincident with the peak in yellowfin tuna abundance. 
Accordingly, species and stock-specific information reliably indicates 
it is probable a fall survey would underestimate actual abundance of 
false killer whales.
    Response: There is no scientific documentation of seasonality in 
false killer whale abundance near Hawaii. Sighting data from observers 
on longline fishing vessels based in Hawaii showed no apparent seasonal 
fluctuations; however, those data included all areas covered by the 
fishery and are not specific to the Hawaiian Islands. Boat-based 
surveys near the main Hawaiian Islands during all months except July 
and August resulted in 14 false killer whales sightings distributed 
throughout the year. Accordingly, there is no scientific information 
supporting the assertion of the 2002 survey underestimating the 
abundance or density of false killer whales in the Hawaiian EEZ. In the 
past, NMFS acknowledged limitations of abundance estimates for certain 
cetaceans in the Hawaiian EEZ because these estimates were based upon 
aerial surveys within 25 nautical miles of the main Hawaiian Islands. 
The 2002 surveys included line transects throughout the EEZ and are not 
subject to the same limitations.
    Comment 31: In reality the Hawaiian population of false killer 
whales is not confined to the Hawaiian Exclusive Economic Zone (EEZ) as 
is predetermined by NMFS' regulatory definition of the stock; however, 
the extent of its distribution beyond the Hawaiian EEZ is unknown, as 
is the relative abundance of the population within the nearshore and 
open ocean areas of the EEZ.
    Response: Genetic analysis of samples from false killer whales in 
the North Pacific Ocean indicates false killer whales found off Hawaii 
are reproductively isolated from those in the ETP, but geographic 
boundaries of the various populations cannot yet be identified. In the 
latest final stock assessment report, NMFS recognizes a stock 
containing false killer whales in the EEZ surrounding Hawaii and other 
US territories in the Pacific Ocean. This report was based on the best 
scientific information available at the time the report was prepared 
and on the requirement in MMPA section 117 to prepare stock assessment 
reports for each stock of marine mammals occurring in waters under the 
jurisdiction of the United States. As new scientific information is 
obtained, NMFS will review such information and

[[Page 43343]]

incorporate it into future revisions of the stock assessment reports as 
required by MMPA section 117. NMFS agrees the distribution of false 
killer whales beyond the Hawaiian EEZ and the relative abundances of 
false killer whales in nearshore and open ocean areas have not been the 
subject of specifically-designed research. However, numerous reports 
and studies, designed for other purposes, contribute information 
related to false killer whale distribution and abundances, and all 
relevant sources of information are incorporated into NMFS' scientific 
analyses and conclusions related to false killer whales and other 
marine mammals in assessing their status and in developing and 
implementing conservation programs. Also see response to comment 33.
    Comment 32: In the case of false killer whales, NMFS has defined 
the animals taken in the Hawaii EEZ as a strategic stock, based on 
genetic evidence suggesting false killer whales between the central 
North Pacific (Hawaii) are separate, reproductively isolated 
populations. However, the degree of separation of these false killer 
whales is not known, and the geographic boundaries for the populations 
cannot yet be identified. False killer whales have been taken by the 
longline fishery in an area ranging from the north of the Hawaii EEZ to 
the equator. Are all of these false killer whales from the same 
population or from separate isolated populations? If from the same 
population, then the designation of a strategic stock in the Hawaii EEZ 
would be questionable.
    Response: See response to comment 31. In addition, even if the 
actual boundaries of the Hawaiian stock of false killer whales extended 
beyond the EEZ, the strategic status of the stock would not be changed. 
NMFS' guidelines for preparing marine mammal stock assessment reports 
contain specific instructions for calculating PBR of transboundary 
stocks. (The guidelines are available in electronic form; see 
Electronic Access.) In cases such as false killer whales in the 
Hawaiian EEZ, where the stock could extend into international waters, 
the PBR would be based on the abundance of animals within the EEZ. This 
guideline was established to prevent underestimating the effects of 
mortality and serious injury incidental to US fisheries in 
international waters where unknown levels of additional human-caused 
mortality and serious injury (e.g., incidental to foreign fisheries in 
the same waters) may also be affecting the stock.
    Comment 33: The abundance estimate of the Hawaii stock of false 
killer whales resulting from the 2002 survey must be viewed with 
suspicion and its utility questioned in relation to implementing the 
ZMRG.
    Response: The protocols for designing, conducting, and analyzing 
the 2002 survey have been used frequently in the past and have been 
subjected to scientific review. In addition, the report of this survey, 
including the resulting abundance estimates, has been peer-reviewed. 
The levels of uncertainty in the estimates from the 2002 survey are 
similar to those for many other stocks of offshore cetaceans, and the 
resulting abundance estimates conform to guidelines for preparing 
marine mammal stock assessment reports. Therefore, the survey results 
may be used reliably for applications related to the abundance, 
distribution, and density of false killer whales and other cetaceans 
within the Hawaiian EEZ.
    Comment 34: The MMPA's goal is to maintain marine mammal 
populations at their OSP levels.
    Response: NMFS agrees maintaining marine mammal populations within 
their OSP levels is one of the goals of the MMPA. The MMPA also 
requires reduction of mortality and serious injury of marine mammals 
incidental to commercial fishing operations to insignificant levels 
approaching a zero mortality and serious injury rate, which is commonly 
referred to as the ZMRG.
    Comment 35: The proposed rule admits as long as human induced 
mortality does not exceed PBR levels, then a marine mammal stock will 
achieve OSP, which is the goal of the MMPA.
    Response: NMFS agrees this is one goal of the MMPA. However, NMFS 
also recognizes reducing fishery-related mortality and serious injury 
of marine mammals to PBR is a short-term goal of TRPs under the MMPA, 
and the long-term goal requires reducing such mortality and serious 
injury to insignificant levels approaching a zero mortality and serious 
injury rate.
    Comment 36: The proposed rule never explains why NMFS abandons any 
pretext of ecosystem-based management when it comes to marine mammals.
    Response: NMFS' approach to ecosystem-based management must be 
consistent with the MMPA and other applicable law. One of the 
provisions of the MMPA requires commercial fisheries to reduce their 
incidental mortality and serious injury of marine mammals to 
insignificant levels approaching a zero mortality and serious injury 
rate. Thus, NMFS is issuing this final rule to implement the provisions 
of the MMPA related to the ZMRG.
    Comment 37: We agree there are no provisions within the MMPA to 
develop and implement TRPs for non-strategic stocks interacting with 
Category II fisheries and urge NMFS to examine and devise mechanisms to 
reduce the bycatch from those fisheries for which the MMPA does not 
currently require TRPs. Toward this end, NMFS should take immediate 
steps to partner with the conservation community and the fishing 
industry to conduct workshops to explore the feasibility of 
transferring existing technologies deemed successful in reducing marine 
mammal bycatch in other fisheries and to investigate new technologies 
to reduce bycatch.
    Response: NMFS has been partnering with many parties in 
investigating new technologies to reduce bycatch within the TRP 
context. Currently, funds for implementing MMPA section 118 are fully 
subscribed in existing activities to address statutory priorities 
(e.g., TRPs for all strategic stocks of marine mammals interacting with 
Category I or II fisheries). NMFS will consider effective and efficient 
mechanisms to reduce mortality and serious injury of non-strategic 
marine mammals incidental to commercial fishing, such as the workshop 
suggested in this comment, to the extent resources and priorities 
allow.
    Comment 38: The proposed insignificance threshold will result in 
yet another layer of arbitrary regulation upon commercial fisheries in 
Hawaii, subjecting such fisheries to additional regulatory burdens, 
legal costs, and economic uncertainties.
    Response: The definition of ``insignificance threshold'' will allow 
NMFS to implement one of the requirements of the MMPA. Rather than 
increase the regulatory burden on commercial fisheries in Hawaii or 
elsewhere, this rule establishes a lower limit to the extent to which 
commercial fisheries are required to reduce incidental mortality and 
serious injury of marine mammals. The insignificance threshold is 
consistent with the criterion for classification as a Category III 
fishery. Prior to this rule, the limit to reducing mortality and 
serious injury was not defined.
    Comment 39: In the case of endangered whales, such as the Atlantic 
northern right whale, with only a few hundred individuals left in the 
population, there can be no question about requiring fisheries to 
literally zero-out interactions. However, false killer whales are not 
endangered, they are a circum-global species found in all

[[Page 43344]]

the world's oceans at tropical and sub-tropical latitudes. According to 
the evidence to date, there may be genetic isolation between eastern 
stocks and those in Hawaii, but the isolation of the false killer 
whales in the EEZ around Hawaii from those in the immediate adjacent 
waters is still an open question. NMFS needs to address how vulnerable 
the Hawaii fishery will be to closure or other constraints if it cannot 
achieve the ZMRG.
    Response: NMFS addressed the extent to which fisheries would be 
subject to closure or other constraints under the ZMRG in the proposed 
rule (see 69 FR 23477, 23480, April 29, 2004, under the heading ``Would 
a Fishery Be Closed if It Missed the Target Mortality and Serious 
Injury Level by the Deadline?''). The MMPA requires NMFS to take action 
to reduce mortality and serious injury to levels consistent with the 
ZMRG through a TRP, which must take into account the economics of the 
affected fishery, the availability of existing technology, and existing 
state and regional fishery management plans.
    Comment 40: We interpret this rulemaking as limited to defining 
ZMRG as used in MMPA sections 101(a)(2) and 118 of the MMPA. We do not 
see this rulemaking as having any bearing on the implementation of the 
International Dolphin Conservation Program (MMPA sections 301-307).
    Response: The comment is an accurate interpretation of the 
application of this final rule. As provided in response to comment 14, 
there are separate requirements applicable to the International Dolphin 
Conservation Program.
    Comment 41: A single definition for ``insignificant levels 
approaching a zero mortality and serious injury rate'' is sufficient, 
and 10 percent of PBR is the most appropriate definition. However, 
large or increasing populations, even when incidental mortality and 
serious injury has been reduced to the insignificance threshold, may 
still have a large number of deaths. For example, the PBR of California 
sea lions is 6,591 animals, and 10 percent of its PBR is 659 sea lions. 
Although this level of mortality is insignificant and can be tolerated 
at the populations level, NMFS and the fishing industry should do 
everything possible to further reduce the mortality and serious injury 
of individual marine mammals to the lowest level practicable.
    Response: Although 659 sea lions may seem a relatively large number 
(compared to single digits), annual mortality at this level would have 
an insignificant effect on the sea lion population. Furthermore, 659, 
as a function of the sea lion population size, is so small it 
approaches a zero rate. Therefore, the insignificance threshold for 
California sea lions is consistent with the MMPA's goal of reducing 
mortality and serious injury of marine mammals incidental to commercial 
fishing operations to insignificant levels approaching a zero mortality 
and serious injury rate. However, as provided in response to comment 
10, NMFS will continue to work with the fishing industry through 
incentive and improvement of available technologies and methods even 
after incidental mortality and serious injury in any particular fishery 
is reduced to the insignificance thresholds for stocks of marine 
mammals.

The Final Rule

    The regulatory text in this final rule is identical to the proposed 
rule and establishes the default target level of mortality and serious 
injury satisfying target levels under the ZMRG as 10 percent of any 
stock's PBR. These targets result in upper limits ranging from two 
animals per 10,000 animals in the population stock for endangered 
whales to six animals per 1,000 in the population for robust pinniped 
stocks. Incidental mortality and serious injury limited to these 
thresholds would have an insignificant effect on stocks of marine 
mammals and would be so small as to be approaching a zero mortality and 
serious injury rate. These initial target levels of incidental 
mortality and serious injury are generally estimated as 10 percent of 
any stock's PBR. However, the Assistant Administrator has discretion to 
modify this simple formula if certain parameters (e.g., maximum net 
production rate or the recovery factor in the calculation of the 
stock's PBR level) can be estimated or otherwise modified from default 
values or when information is insufficient to estimate the level of 
mortality and serious injury having an insignificant effect on the 
affected population stock.
    The insignificance threshold, which is the stock-specific target 
level of incidental mortality and serious injury under the ZMRG, 
includes only a consideration of the maximum number of individuals in a 
stock of marine mammals killed or seriously injured incidental to 
commercial fishing and still be considered insignificant levels 
approaching a zero mortality and serious injury rate. In this regard, 
it expresses a biological estimate and does not include consideration 
of the economics of affected fisheries, the availability of existing 
technology, or existing state or regional fishery management plans. 
These factors are taken into account in the long-term goal of the TRP 
process to develop and implement measures to reduce incidental 
mortality and serious injury to insignificant levels approaching a zero 
mortality and serious injury rate (see MMPA section 118(f)(2)).

Classification

    NMFS prepared an EA to analyze the impacts on the human environment 
of alternatives for establishing an insignificance threshold to 
implement the ZMRG. The draft EA was available for public review and 
comment along with the proposed rule, and no comments were received on 
the draft EA. Based upon the analyses in the EA, NMFS has determined 
the establishment of an insignificance threshold as 10 percent of a 
marine mammal stock's PBR would not have a significant impact on the 
human environment.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    At the proposed rule stage, the Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration this action, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. No comments were received regarding this certification or the 
economic impact of the rule, which was described in a preliminary 
regulatory impact review incorporated into the draft EA. As a result, 
no regulatory flexibility analysis is required, and none has been 
prepared.
    This final rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1980. This 
final rule does not contain policies with federalism implications 
sufficient to warrant preparation of a federalism assessment under 
Executive Order 13132.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and record keeping 
requirements.

    Dated: July 14, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 229 is amended as 
follows:

[[Page 43345]]

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

0
1. The authority citation for part 229 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
2. In Sec.  229.2, the definition for ``Insignificance threshold'' is 
added in alphabetical order to read as follows:


Sec.  229.2  Definitions.

* * * * *
    Insignificance threshold means the upper limit of annual incidental 
mortality and serious injury of marine mammal stocks by commercial 
fisheries that can be considered insignificant levels approaching a 
zero mortality and serious injury rate. An insignificance threshold is 
estimated as 10 percent of the Potential Biological Removal level for a 
stock of marine mammals. If certain parameters (e.g., maximum net 
productivity rate or the recovery factor in the calculation of the 
stock's potential biological removal level) can be estimated or 
otherwise modified from default values, the Assistant Administrator may 
use a modification of the number calculated from the simple formula for 
the insignificance threshold. The Assistant Administrator may also use 
a modification of the simple formula when information is insufficient 
to estimate the level of mortality and serious injury that would have 
an insignificant effect on the affected population stock and provide a 
rationale for using the modification.
* * * * *
[FR Doc. 04-16355 Filed 7-19-04; 8:45 am]
BILLING CODE 3510-22-S