95-21552. Taking of Marine Mammals Incidental to Commercial Fishing Operations; Authorization for Commercial Fisheries

[Federal Register Volume 60, Number 168 (Wednesday, August 30, 1995)]
[Rules and Regulations]
[Pages 45086-45106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21552]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 229

[Docket No. 950605147-5209-02; I.D. 052395C]
RIN 0648-AH33


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Authorization for Commercial Fisheries

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement the new management 
regime for the unintentional taking of marine mammals incidental to 
commercial fishing operations established by section 118 of the Marine 
Mammal Protection Act of 1972 (MMPA) as amended by the MMPA Amendments 
of 1994. Section 118 provides for limited exemptions from the MMPA's 
general prohibition on the take of marine mammals, for the 
unintentional incidental take of marine mammals by commercial fishers 
in the course of commercial fishing, and requires NMFS to authorize 
such incidental takes by a commercial fisher upon the receipt of 
certain information and provided certain other conditions are met. This 
rule requires commercial fishers to annually register for an 
Authorization Certificate by filing specified information, provides for 
the issuance by NMFS of such certificates, requires commercial fishers 
to report to NMFS the incidental mortality and injury of any marine 
mammals in the course of commercial fishing, and requires commercial 
fishers to comply with certain other requirements. In order to allow 
commercial fishers time to comply with the new section 118 
registrations and reporting requirements which become effective on 
September 1, 1995, NMFS by this notice also announces transition 
policies from the old section 114 regime which expires on September 1, 
1995.

EFFECTIVE DATES: September 1, 1995 except Sec. 229.6, which becomes 
effective January 1, 1996.

ADDRESSES: Copies of NOAA Administrative Order 216-100, the MMPA, as 
amended in 1994, and the Environmental Assessment (EA) prepared for the 
proposed rule in aggregate or summary form may be obtained by writing 
to Chief, Marine Mammal Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910. A copy of the EA may also be obtained by accessing 
the NMFS ``Home Page'' on the World Wide Web at http://
kingfish.ssp.nmfs.gov:80/home-page.html.

FOR FURTHER INFORMATION CONTACT: Robyn Angliss, Office of Protected 
Resources, 301-713-2322; Douglas Beach, Northeast Region, 508-281-9254; 
Charles Oravetz, Southeast Region, 813-570-5301; James Lecky, Southwest 
Region, 310-980-4015; Brent Norberg, Northwest Region, 206-526-6140; 
Steve Zimmerman, Alaska Region, 907-586-7235.

SUPPLEMENTARY INFORMATION:
    Section 118 of the MMPA, as added by the MMPA Amendments of 1994, 
establishes a new regime to govern interactions between marine mammals 
and commercial fisheries. Proposed regulations implementing section 118 
and a proposed list of fisheries (LOF) for 1996 were published on June 
16, 1995 (60 FR 31666). An EA was prepared concurrently and was made 
available when the proposed regulations were published. The public 
comment period for the proposed regulations ended on July 31, 1995; the 
public comment period for the proposed LOF ends September 14, 1995. 
This final rule addresses only the public comments on the proposed 
rule. Comments addressing the proposed LOF will be published in the 
Federal Register with the final LOF.

History of the Proposed Rule Implementing Section 118

    Section 118 of the MMPA, as amended in 1994, replaces section 114 
which exempted, on an interim basis, commercial fishers who comply with 
certain requirements from the general prohibition on the taking of 
marine mammals. The process used to develop the proposed and final rule 
included many opportunities for public involvement.
    A Federal Register notice (59 FR 45263) announcing proposed changes 
to the LOF and different options for new fishery classification 
criteria was published on September 1, 1994. 

[[Page 45087]]
Comments were received and were taken into consideration when preparing 
draft proposed regulations. Informal working sessions to discuss the 
draft proposed regulations were held in Silver Spring, MD, on November 
30, 1994, and in Seattle, WA, on December 1, 1994. These working 
sessions provided interested parties the opportunity to participate in 
discussions of how to revise the draft regulations.
    The ``MMPA Bulletin'', a new publication of the Office of Protected 
Resources, is designed to increase public awareness of and 
participation in the regulatory process. The first edition, published 
in September, 1994, included a description of the 1994 Amendments to 
the MMPA, and subsequent editions have focused on NMFS' efforts to 
implement the amendments. The ``MMPA Bulletin'' has been sent to 
approximately 1,600 interested parties, including fishers, members of 
the environmental community, marine mammal scientists, state and 
Federal agencies dealing with protected species issues, Native American 
groups, public display facilities, and Congressional staff.
    The proposed rule was published on June 16, 1995, in combination 
with the proposed LOF (60 FR 31666). NMFS issued a press release 
announcing the availability of the proposed rule and summarizing the 
major issues contained in the proposed rule. Information included in 
this press release was published in several newspapers. A summary of 
the proposed rule was also included on the front page of the June/July 
issue of the ``MMPA Bulletin'', along with major changes proposed in 
the LOF. NMFS circulated a ``Regulatory Alert'' to its ``MMPA 
Bulletin'' mailing list summarizing the proposed rule and listing dates 
for public hearings. Regional public hearings were held in Danvers, MA; 
Oceanville, NJ; Silver Spring, MD; Ocean City, MD; Long Beach, CA; 
Ronkonkoma, NY; Anchorage, AK; Beaufort, NC; and Seattle, WA. Each 
hearing was attended by between 2 and 20 people, and between 0 and 10 
people provided public comments.
    On July 19, 1995, a correction was published (60 FR 37043) in the 
Federal Register. The correction identified errors and omissions in the 
proposed LOF and clarified the status of certain stocks of marine 
mammals identified in the proposed LOF.

Transition from Section 114 Regime to the Section 118 Regime

    While the MMPA requires that section 114 expire on September 1, 
1995, or when final section 118 implementing regulations become 
effective, whichever is earlier, no transition procedures are 
specified. In order to allow fishers time to comply with the new 
section 118 registration and reporting requirements which become 
effective on September 1, 1995, NMFS announces the following transition 
policies:
    Registration: Those owners of vessels holding valid Exemption 
Certificates issued under section 114 will be deemed to have registered 
under section 118 through December 31, 1995. Fishers participating in 
Category I or II fisheries as identified in the current LOF who are not 
currently registered must register with the nearest NMFS regional 
office before participating in such Category I or II fisheries. 
Registration procedures for obtaining Authorization Certificates in 
1996 will be published concurrently with the final LOF for 1996.
    Reporting: NMFS is in the process of developing the reporting form 
that fishers will use after January 1, 1996. A draft of this reporting 
form will be published in the Federal Register and will be available 
for public comment. Commercial fishers are requested to report all 
injuries and mortalities to the nearest NMFS regional office until 
these forms are available.
    Incidental taking of species listed as endangered or threatened 
under the Endangered Species Act: Under section 101(a)(5)(E) of the 
MMPA, NMFS is required to issue permits for the incidental taking of 
threatened or endangered species listed under the Endangered Species 
Act (ESA), if it can be determined that (1) mortality and serious 
injury incidental to commercial fisheries would have a negligible 
impact on the affected species or stock,(2) a recovery plan for that 
species or stock has been developed or is being developed, and (3) 
where required under section 118, a monitoring program has been 
established, vessels are registered, and a take reduction plan has been 
developed or is being developed. NMFS expects to publish an interim 
final LOF that have met these conditions by September 1, 1995. Comments 
on the list will be accepted for 45 days from the date of publication 
of the list, after which time a final list will be published. Inclusion 
of a fishery on the list constitutes authorization for that fishery to 
incidentally take marine mammals from the specified threatened or 
endangered species or stocks. Fisheries may be authorized to have 
incidental takes of some species or stocks listed as threatened or 
endangered, but not others. Participants in fisheries that are not 
included on the list will not receive permits and will remain subject 
to the ESA prohibition against taking marine mammals from endangered or 
threatened stocks.

Responses to Comments

    During July 1995, NMFS held 10 public hearings at various locations 
throughout the country to receive comments on the proposed rule and 
LOF. A total of 86 individuals attended these hearings, 28 of whom 
submitted oral comments on the proposed rule, LOF or both. NMFS also 
received 54 written comments during the comment period for the proposed 
rule. Many comments also addressed aspects of the LOF. Since the 
comment period for the LOF remains open until September 14, 1995, all 
comments related to the LOF will be addressed during publication of the 
final LOF in October 1995. Comments were received from fishers, fishing 
industry groups, environmental groups, animal rights groups, state 
departments of fisheries, other executive branch departments, and 
members of the general public.
    Approximately 15 letters were general in nature, expressing support 
for the MMPA and opposition to any measures that might weaken the MMPA. 
Most comments from fishers, industry groups, and environmental groups 
expressed general support for NMFS's two-tiered approach to classifying 
fisheries based on Potential Biological Removal (PBR) levels; however, 
many raised specific concerns about the dividing lines established to 
separate Category I, II and III fisheries. Many of the comments are 
lengthy and raise many points of concern. Key issues and concerns are 
summarized and responded to as follows:

Comments on the Goals and Purpose of the Section 118 Regulations

    Several comments addressed the Zero Mortality Rate Goal (ZMRG) 
definition in the proposed rule. The final rule does not contain a 
definition for this goal. NMFS is still considering what would be an 
appropriate definition for the goal. Specific comments on the goal will 
be addressed when a final definition is published in the Federal 
Register. Other comments about the goals and purpose of this action are 
summarized and responded to as follows.
    Comment 1: The goal of restoring all populations to optimum levels 
is short-sighted and ignores the competition between species for 
habitat and prey. There are always natural and complementary increases 
and decreases of competing marine mammal stocks. Therefore, NMFS should 
use an ecosystem approach to marine mammal 

[[Page 45088]]
management rather than a species by species approach.
    Response: The MMPA (section 2(2)) states that marine mammal species 
and stocks ``should not be permitted to diminish beyond the point at 
which they cease to be a significant functioning element in the 
ecosystem of which they are a part, and consistent with this major 
objective, they should not be permitted to diminish below their optimum 
sustainable population (OSP).'' NMFS recognizes that complex 
relationships may exist between different marine mammals and their prey 
populations. However, many marine mammal species are depleted and, in 
some cases, threatened or endangered. The return of these stocks to OSP 
will allow them to continue as a functioning part of the ecosystem. The 
implementing regulations promulgated under the MMPA must endeavor to 
allow those species and stocks to return to OSP.
    Comment 2: NMFS should use incidental take as a barometer of marine 
mammal population health. If you have lots of takes you have a strong 
population.
    Response: A high incidence of serious injury and mortality 
incidental to commercial fishing operations could be due to several 
different factors. The type of gear used in a fishery, the geographic 
location of a fishery, the season during which a fishery operates, the 
distribution and behavior of marine mammals in a particular area, and 
other factors affect the frequency of marine mammal serious injury and 
mortality incidental to commercial fishing operations. In addition, 
there are fisheries which operate in areas with relatively high levels 
of marine mammals, yet which do not have high levels of incidental 
removals. Thus, having a high level of incidental take does not 
necessarily mean that a population is strong.
    Comment 3: We need to reassess our values that place marine mammals 
above human concerns.
    Response: A primary purpose of section 118 of the MMPA is to 
provide an exemption for commercial fisheries so they may accidentally 
seriously injure or kill marine mammals incidental to their commercial 
fishing operations so long as the level of serious injury and mortality 
does not severely impact marine mammal populations. Without this 
exemption, fishers could not legally take marine mammals incidental to 
their fishing operations. This rulemaking is not the appropriate 
mechanism for reassessing societal valuation of marine mammals. That 
issue should be addressed, if appropriate, by Congress.

Comments on Definitions of Fisheries in the List of Fisheries

    Comment 4: NMFS should define fisheries based on the effect on 
marine mammal stocks, not artificial criteria such as state boundaries.
    Response: NMFS will, whenever possible, define fisheries the way 
they are defined in federal, regional, or state fishery management 
programs. This will (1) help which NMFS fulfill its statutory 
obligations by coordinating registration under the MMPA with existing 
fishery management programs, (2) provide a ``common name'' for a 
fishery that can be used by NMFS, fishers, and state and regional 
fishery managers, and (3) allow NMFS to more easily collect information 
on fishery statistics, such as the number of participants, target 
species, length of fishing season, etc.

Comments on Fishery Classification Criteria

    Many public comments were received requesting clarification on how 
fishery classification criteria were applied. A brief discussion of the 
two-tier approach is provided, followed by specific comments.
    The regulations implementing section 118 include a new fishery 
classification scheme. The fishery classification criteria consist of a 
two-tiered, stock-specific approach that first addresses the total 
impacts of all fisheries on each marine mammal stock and then addresses 
the impacts of individual fisheries on each stock. Tier 1 considers the 
additive fishery mortality and serious injury for a particular stock, 
while Tier 2 considers fishery-specific mortality for a particular 
stock. This approach is based on the rate, in numbers of animals per 
year, of serious injuries and mortalities due to commercial fishing 
relative to a stock's PBR level. A more extensive explanation of NMFS' 
two-tiered approach is found in the EA for the proposed rule.
    Tier 1: If the total annual mortality and serious injury across all 
fisheries that interact with a stock is less than or equal to 10 
percent of the PBR level of such a stock, then all fisheries 
interacting with this stock (and no other stocks that do not fit this 
criteria) would be placed in Category III. Otherwise, these fisheries 
are subject to the next tier to determine their classification.
    Tier 2--Category I: Annual mortality and serious injury of a stock 
in a given fishery is greater than or equal to 50 percent of the 
stock's PBR level.
    Tier 2--Category II: Annual mortality and serious injury is greater 
than 1 percent and less than 50 percent of the stock's PBR level.
    Tier 2--Category III: Annual mortality and serious injury is less 
than or equal to 1 percent of the PBR level.
    The threshold between Tier 1 and Tier 2 was set at 10 percent of 
the PBR level based on the recommendation of individuals at a PBR 
Workshop held in La Jolla, California in June 1994. The Workshop Report 
indicated that if the total annual incidental serious injury and 
mortality level for a particular stock did not exceed 10 percent of the 
PBR level, the amount of time necessary for that population to achieve 
OSP would only increase by 10 percent. Thus, 10 percent of the PBR 
level for a particular stock was equated to ``biological 
insignificance.''
    The threshold between Category II and III was set at 1 percent of 
PBR. This threshold resulted from working group discussions that 
supported the Tier 1 threshold to be 10 percent or less. Because there 
are situations where as many as 10 fisheries may be responsible for 
serious injuries and mortalities from the same marine mammal stock, 1 
percent was used as the threshold between Category II and III 
fisheries.
    The threshold between Category I and Category II fisheries was set 
at 50 percent of the PBR level. Although the working session 
recommended 30 percent as the threshold, during the preparation of the 
proposed rule NMFS determined that 30 percent was more conservative 
than required. The proposed threshold was then increased to 50 percent.
    Example: Suppose Fishery A, B, and C have annual mortality and 
serious injury levels of 1 percent, 8 percent, and 12 percent of the 
PBR level for a particular stock, respectively, and these fisheries do 
not interact with any other stocks of marine mammals. Because the 
additive percent take relative to the PBR level for all three fisheries 
is 21 percent, all three fisheries would meet the Tier 1 criteria and 
be subject to classification under Tier 2. Under the Tier 2 criteria, 
Fishery A would be placed in Category III, and Fisheries B and C would 
be placed in Category II.
    Comment 5: The dividing line between Category I and II fisheries 
should be changed to 30 percent of the PBR level. The more conservative 
30 percent dividing line is warranted because there are only a few 
fisheries where both PBR level and estimated fishing mortality are 
known with some degree of confidence and because reductions in NMFS 
appropriations are likely to severely hamper research and 

[[Page 45089]]
implementation, further confounding NMFS's ability to gather accurate 
estimates of PBR levels and total fishing mortality. In all other cases 
NMFS must use logbooks and anecdotal information which represent only a 
minimum indication of total removal levels. The more conservative 30 
percent dividing line will guarantee that marginal fisheries are 
included in Category I where observation of such fisheries are a 
greater priority.
    Response: The 2-tier approach to classifying fisheries first 
considers combined fisheries impacts on a marine mammal stock and then 
considers the contribution of each individual fishery impacting a 
stock. If the combined impact of all fisheries on a particular stock 
are below 10 percent of the PBR level then that stock is placed in Tier 
1. All fisheries impacting Tier 1 stocks receive a Category III 
classification regardless of whether their individual impacts are above 
1 percent of the PBR level. If the combined impact of all fisheries on 
a particular stock is above 10 percent of the PBR level then that stock 
is placed in Tier 2. Only those fisheries impacting Tier 2 stocks are 
required to meet the 1 percent of the PBR level threshold in order to 
receive a Category III classification. Under this 2-tier approach, the 
biological significance level of 10 percent of PBR is the first 
standard used to classify fisheries. Consequently, fisheries are not 
required to meet the Tier 2 Category III threshold of 1 percent of the 
PBR level unless the combined fishery-related impacts on the marine 
mammal stock are above the biological significance level of 10 percent 
of the PBR level.
    Comment 6: The 50 percent of the PBR level dividing line between 
Category I and II fisheries is appropriate because there are already 
enough conservative assumptions built into the Category I 
classification.
    Response: NMFS agrees. The threshold between Category I and II 
fisheries has been retained at 50 percent.
    Comment 7: Five percent of the PBR level is a more reasonable and 
practical dividing line between Categories II and III fisheries. In the 
EA for the proposed rule there is little discussion about the need for 
so strict a standard and no justification for dismissing an alternative 
threshold of 5 percent of PBR. A June 1994 NMFS workshop on the PBR 
level has already concluded that fishery takes from a marine mammal 
stock should be considered insignificant if they are less than 10 
percent of the PBR level.
    Response: The dividing line chosen for the proposed rule was based, 
in part, on information from the Seattle Working Session where it was 
discussed that the cumulative fishery incidental serious injuries and 
mortalities should be under 10 percent and individual fishery takes 
should be under 1 percent. Also see general description of the two-
tiered scheme at the beginning of this section of the preamble.
    Comment 8: In many Category II fisheries with high levels of 
fishing effort, the low levels of marine mammal take shown in the EA 
suggest random accidents. In some instances, fisheries make hundreds of 
thousands of sets and still take less than one marine mammal per year. 
An extreme level of disruption may be required for some of these 
fisheries to reach take levels below 1 percent of the PBR level. In 
some cases, it may even be impossible to reach the 1 percent of the PBR 
level where fisheries interact with marine mammal stocks with low PBR 
levels.
    Response: The fishery classification criteria in the final rule 
consider the incidental serious injury and mortality of marine mammals 
in commercial fisheries on a stock-specific basis to allow for 
management of marine mammal takes using a ``weakest stock'' approach. 
The population level and status of each marine mammal stock that 
interacts with fisheries is specific to that stock. Thus, the level of 
take each marine mammal population can withstand, while still allowing 
the population to attain OSP, is also stock-specific. For instance, 
because the minimum population size of North Atlantic right whales is 
295 animals, the number of animals that can be removed from this 
population by commercial fishing while allowing the population to 
attain OSP is 0. In addition, because the minimum population size of 
harbor seals (Oregon/Washington coast stock) is 28,322, the number of 
animals that can be removed from this population by commercial fishing 
while allowing the population to attain OSP, is 1,699. Thus, a small 
take of right whales (<= 1="" per="" year)="" would="" have="" a="" significant="" negative="" effect="" on="" the="" population,="" whereas="" a="" similar="" take="" of="" the="" oregon/="" washington="" coastal="" stock="" of="" harbor="" seals="" would="" not.="" the="" chosen="" approach="" allows="" nmfs="" to="" focus="" management="" actions="" where="" fishery="" interactions="" have="" a="" significant="" negative="" effect="" on="" the="" population.="" comment="" 9:="" if="" the="" 1="" percent="" dividing="" line="" between="" category="" ii="" and="" category="" iii="" fisheries="" is="" used,="" ridiculously="" low="" levels="" of="" takes="" (less="" than="" one="" per="" year)="" will="" shift="" some="" otherwise="" non-interacting="" fisheries="" from="" category="" iii="" to="" category="" ii.="" therefore,="" fisheries="" with="" takes="" below="" some="" absolute="" threshold,="" such="" as="" one="" animal="" per="" year,="" should="" be="" considered="" category="" iii="" fisheries="" and="" to="" have="" met="" the="" zmrg="" as="" long="" as="" their="" take="" does="" not="" exceed="" the="" 10="" percent="" of="" the="" pbr="" insignificant="" take="" level="" established="" in="" the="" rule.="" classifying="" fisheries="" that="" have="" average="" takes="" below="" one="" animal="" per="" year="" as="" category="" ii="" draw="" government="" attention="" and="" resources="" away="" from="" real="" concerns="" with="" category="" i="" and="" legitimately="" classified="" category="" ii="" fisheries.="" response:="" see="" response="" to="" comment="" 8="" regarding="" the="" significance="" a="" low="" level="" of="" take="" may="" have="" on="" a="" marine="" mammal="" population.="" nmfs="" recognizes="" that="" there="" are="" some="" marine="" mammal="" populations="" that="" are="" so="" small="" in="" size="" (e.g.,="" right="" whales)="" that="" serious="" injury="" and="" mortality="" of="" one="" animal="" every="" two="" years="" would="" still="" have="" a="" significant="" impact="" on="" the="" population.="" the="" definitions="" of="" category="" ii="" and="" iii="" fisheries="" in="" the="" final="" rule="" include="" qualitative="" criteria="" that="" allow="" the="" assistant="" administrator="" for="" fisheries,="" noaa="" (assistant="" administrator)="" to="" place="" a="" fishery="" into="" category="" ii="" or="" iii="" after="" public="" notice="" and="" opportunity="" for="" public="" comment.="" in="" the="" absence="" of="" reliable="" information,="" this="" qualitative="" criteria="" will="" allow="" the="" assistant="" administrator="" to="" take="" into="" consideration="" cases="" where="" the="" pbr="" level="" for="" a="" particular="" stock="" is="" very="" low="" and/or="" where="" the="" level="" of="" incidental="" interaction="" with="" commercial="" fisheries="" is="" low="" and="" not="" likely="" to="" delay="" the="" population's="" attainment="" of="" osp.="" comment="" 10:="" the="" classification="" system="" should="" be="" modified="" so="" that="" fisheries="" with="" a="" high="" frequency="" of="" marine="" mammal="" mortality="" and="" serious="" injury="" across="" several="" stocks="" are="" included="" in="" category="" i,="" even="" if="" the="" mortality="" rate="" for="" each="" individual="" stock="" is="" below="" 50="" percent="" of="" the="" pbr="" level.="" response:="" in="" order="" to="" address="" fisheries="" with="" a="" high="" frequency="" of="" marine="" mammal="" mortality="" and="" serious="" injury="" across="" several="" stocks,="" the="" fishery="" classification="" criteria="" would="" need="" to="" be="" a="" combination="" of="" those="" under="" the="" old="" section="" 114="" and="" the="" new="" criteria.="" this="" option="" was="" considered="" in="" the="" ea.="" the="" ea="" examined="" hypothetical="" fishery="" classification="" criteria="" which="" would="" be="" based="" on="" per-vessel="" takes="" of="" all="" marine="" mammals="" per="" 20="" days="" and="" on="" annual="" take="" of="" a="" specific="" stock="" relative="" to="" the="" pbr="" level.="" to="" use="" this="" approach,="" nmfs="" would="" need="" fairly="" good="" estimates="" of="" fishing="" effort,="" marine="" mammal="" population="" sizes,="" and="" annual="" and="" per-20="" day="" levels="" of="" incidental="" serious="" injuries="" and="" mortalities.="" because="" the="" mmpa="" amendments="" have="" eliminated="" logbooks="" from="" the="" requirements="" for="" category="" i="" and="" ii="" fisheries,="" fishing="" effort="" in="" unobserved="" [[page="" 45090]]="" fisheries="" will="" no="" longer="" be="" quantified="" on="" a="" daily="" basis="" and="" a="" per-="" vessel="" per="" 20-day="" take="" rate="" for="" all="" marine="" mammals="" would="" be="" difficult="" to="" calculate.="" while="" some="" fisheries="" have="" takes="" of="" many="" different="" species="" or="" stocks="" of="" marine="" mammals,="" nmfs="" believes="" that="" limited="" agency="" resources="" should="" be="" directed="" towards="" those="" fisheries="" that="" have="" ``biologically="" significant''="" takes="" of="" particular="" stocks="" of="" marine="" mammals.="" accordingly,="" this="" approach="" was="" rejected.="" comment="" 11:="" the="" fishery="" classification="" criteria="" should="" be="" made="" more="" flexible="" by="" including="" examinations="" of="" both="" the="" number="" of="" serious="" injuries="" and="" mortalities="" relative="" to="" the="" pbr="" level="" and="" the="" rate="" of="" serious="" injuries="" and="" mortalities="" per="" vessel,="" per="" day.="" response:="" this="" approach="" is="" addressed="" in="" the="" ea.="" the="" primary="" difficulty="" with="" adopting="" any="" fishery="" classification="" criteria="" which="" depends="" on="" a="" per-vessel/per-day="" rate="" is="" nmfs'="" inability="" to="" collect="" effort="" data="" from="" commercial="" fisheries.="" under="" section="" 114="" of="" the="" mmpa,="" logbooks="" were="" completed="" by="" commercial="" fishers="" in="" category="" i="" and="" ii="" fisheries.="" these="" logbooks="" provided="" nmfs="" with="" a="" rough="" estimate="" of="" the="" level="" of="" effort="" for="" each="" fishery.="" nmfs="" was="" also="" able="" to="" use="" landings="" data="" in="" a="" number="" of="" state/="" federal="" fisheries="" to="" calculate="" effort="" under="" section="" 114.="" under="" section="" 118,="" fishers="" must="" only="" report="" injury="" and="" mortality="" of="" marine="" mammals,="" but="" not="" effort.="" while="" observers="" in="" category="" i="" and="" ii="" fisheries="" may="" record="" effort="" data,="" in="" many="" fisheries,="" the="" sample="" size="" is="" so="" small="" that="" the="" information="" is="" inadequate="" to="" allow="" nmfs="" to="" compute="" a="" per="" vessel,="" per="" day="" take="" rate="" for="" the="" fishery="" as="" a="" whole.="" comment="" 12:="" the="" proposed="" classification="" system="" could="" allow="" a="" fishery="" to="" be="" moved="" from="" category="" i="" to="" category="" ii="" by="" subdividing="" it="" into="" two="" or="" more="" fisheries.="" response:="" although="" a="" subdivision="" could="" potentially="" move="" a="" fishery="" from="" category="" i="" to="" ii,="" because="" of="" the="" stringent="" criteria="" for="" category="" iii="" fisheries,="" it="" is="" unlikely="" that="" dividing="" a="" fishery="" could="" place="" part="" of="" that="" fishery="" in="" category="" iii.="" moreover,="" the="" practical="" differences="" between="" category="" i="" and="" ii="" fisheries="" are="" small;="" fishers="" in="" both="" categories="" must="" register,="" carry="" observers="" if="" requested="" by="" nmfs,="" and="" comply="" with="" take="" reduction="" plans.="" nmfs="" could="" decide="" to="" subdivide="" a="" fishery="" if="" available="" information="" indicates="" that="" some="" part="" of="" the="" fishery="" has="" a="" higher="" frequency="" of="" marine="" mammal="" incidental="" serious="" injury="" and="" mortality.="" this="" would="" have="" a="" beneficial="" impact="" in="" that="" it="" would="" focus="" management="" actions="" on="" that="" part="" of="" the="" fishery="" that="" has="" the="" greatest="" impact="" on="" a="" marine="" mammal="" stock.="" comment="" 13:="" nmfs="" should="" clarify="" how="" it="" will="" classify="" fisheries="" where="" the="" pbr="" level="" for="" a="" marine="" mammal="" stock="" incidentally="" taken="" in="" a="" fishery="" is="" zero="" or="" not="" available.="" response:="" in="" general,="" fisheries="" were="" classified="" based="" on="" the="" marine="" mammal="" stock="" with="" the="" highest="" number="" of="" mortalities="" and="" serious="" injuries="" relative="" to="" the="" pbr="" level.="" if="" takes="" of="" a="" marine="" mammal="" stock="" occurred="" for="" a="" stock="" with="" a="" zero="" pbr="" level,="" that="" stock="" was="" placed="" in="" category="" i="" (=""> 50 percent of the PBR level). If takes of a marine mammal 
stock occurred for a stock where the PBR level was not available, the 
stock with the highest number of takes relative to a known PBR level 
was used to classify the fishery.
    Comment 14: The Category III fishery definition should be amended 
to allow observer monitoring of Category III fisheries in order to see 
whether further reductions in marine mammal kills can be made by these 
fisheries.
    Response: Section 118 of the MMPA does not allow NMFS to allow 
observer monitoring of Category III fisheries unless the Assistant 
Administrator believes the incidental mortality and serious injury of 
marine mammals occurring in the fishery will have a immediate and 
significant adverse impact on a species listed under the ESA, emergency 
regulations have been published, and a determination has been made 
regarding whether the fishery should be included in a Take Reduction 
Plan. By their classification in Category III, NMFS believes that, 
generally, further reductions in marine mammal mortality are not 
necessary.
    Comment 15: The Category III fishery definition should be 
restricted to fisheries in which the collective take with all other 
fisheries is less than 10 percent of a stock's PBR level ``and'' that 
fishery by itself is responsible for the removal of 1 percent or less 
of that stock's PBR level.
    Response: NMFS has determined that the definition of Category III 
fishery should include ``or'' rather than ``and''. This will allow 
fisheries with marine mammal incidental serious injury and mortality of 
under 1 percent of the PBR level to be placed in Category III.
    Comment 16: NMFS should not automatically place a fishery into 
Category II when a stock status or fishery serious injury or mortality 
information is lacking. This places an additional registration burden 
on these fisheries. NMFS still has the authority to mandate observer 
coverage for Category III fisheries if there is a suspected problem. In 
addition, NMFS may reclassify fisheries into a different Category if 
there is a suspected problem.
    Response: NMFS may only place observers on vessels participating in 
a Category III fisheries in certain emergency circumstances (see 
response to Comment 14). Because of this limitation and in order for 
NMFS to be allowed the opportunity to obtain information needed to most 
accurately categorize a commercial fishery, new commercial fisheries 
without reliable marine mammal take statistics will be placed in 
Category II until enough information is collected to warrant 
reclassification.
    Comment 17: It is reasonable to place any fishery not specified in 
the LOF in the Category II classification until the next LOF is 
published as this will allow NMFS to obtain registration data and place 
observers in these fisheries if more information is needed.
    Response: NMFS agrees. Section 229.2 has been modified to provide 
guidelines for the classification of fisheries in cases where data do 
not exist or are not reliable.
    Comment 18: The definition for both Category II and III fisheries 
contain qualitative and vague criteria. Using the term ``by analogy'' 
without further guidance is ambiguous and contrary to the process NMFS 
outlines in the preamble. Therefore, the definition of Category II and 
III fisheries should be changed to read as follows: ``In making the 
determination of the frequency of incidental mortality and serious 
injury of marine mammals by a commercial fishery, the Assistant 
Administrator may determine whether the taking is 'occasional' by using 
observer data extrapolated to estimate a total annual kill log book or 
other reports by fishers, examination of stranded animals, or by 
analogy with other fisheries occurring in similar locations or times or 
having similar gear types or methods for which observer or logbook 
information exists including consideration of the distribution of 
marine mammals in the areas.''
    Response: NMFS agrees. The definition is changed to delete the term 
``analogy'' and specify the types of qualitative criteria that may be 
used to classify fisheries.
    Comment 19: In fisheries with low rates of observer coverage, the 
extrapolation of data highlights the need for exceptionally competent 
observers. A single misstep or improper species identification can 
adversely impact a fishery. As a case in point, a single observed pilot 
whale take was used to re-categorize the pelagic long-line fishery. 
Some believe the observer mis-

[[Page 45091]]
identified the animal which could have been a false orca.
    Response: NMFS observers are well-trained in species identification 
and, although may mistakes occur, they are rare. Questions such as the 
pilot whale/false killer whale example may be verified by examining the 
location of the take; false killer whales occur in the Northern Gulf of 
Mexico but are rare in the North Atlantic, where the majority of the 
effort in the longline fishery occurs. In addition, observers undergo 
extensive debriefing when they return to port to ensure that the 
observer has correctly identified all species with which the fishing 
vessel interacted.
    Comment 20: NMFS should include a new definition, that of ``high 
level of mortality and serious injury across a number of stocks,'' 
which would relate to the seriousness of a fishery's interaction with 
all stocks. The following definition is proposed: `` High level of 
mortality and serious injury across a number of stocks means a Category 
I fishery which has an annual incidental mortality and serious injury 
rate that exceeds or equals 30 percent of two or more marine mammal 
stocks' PBR level.''
    Response: The phrase ``high level of mortality and serious injury 
across a number of stocks'' appears in section 118(f)(1) of the MMPA 
and was used in the preamble of the proposed rule when discussing 
statutory guidelines for Take Reduction Teams. Because this term will 
not be used in regulatory text until subpart C of part 229 is 
developed, it is not necessary to define this term at this time.
    Comment 21: If observer coverage is focused on those few fisheries 
that currently have high rates of marine mammal interactions, how will 
it ever be determined that there is a potential problem in another 
fishery? Because interactions between marine mammals and fisheries tend 
to fluctuate from year to year, the potential is there for a fishery 
not having much marine mammal interaction today but have many 
interactions in the future.
    Response: In addition to traditional observer programs and fisher's 
reports, NMFS may also use stranding data, alternate observer programs 
that utilize platforms such as aircraft and non-fishing vessels, and 
other sources of information to determine the level of serious injury 
and mortality in fisheries, to prioritize observer placement, and to 
collect information on incidental interactions between commercial 
fisheries and marine mammals. The observer program will be modified to 
include both Category I and II fisheries where reliable observer data 
are not currently available.
    Comment 22: Using PBR levels to classify fisheries has several 
management advantages, but it is only as accurate as the data being 
used in the PBR level calculations. To establish PBR levels for marine 
mammals, NMFS assumes its population estimates are accurate. How 
current are the data NMFS is using to determine population estimates? 
How is NMFS planning to update population estimates for different 
stocks, particularly strategic stocks? How often will NMFS update its 
population estimates for strategic stocks?
    Response: NMFS recognizes that the regime established under section 
118 must be one that minimizes risk to marine mammals. Establishing and 
maintaining extensive banks of information regarding marine mammal 
populations and mortality is necessary to minimize restrictions on 
fishing opportunity. The MMPA directs NMFS to update information on a 
regular basis, and NMFS has implemented an assessment program that will 
be as extensive as Congressional appropriations allow.
    The assessment program provides information on an annual basis; 
therefore, some estimates are no more than a year old, whereas other 
estimates are more than 5 years old. Abundance and mortality estimates 
are supported based upon the perceived need for information based upon 
known or suspected status of the population and level of mortality, as 
well as the age and quality of existing information. Because funding 
levels cannot be predicted in advance, NMFS cannot give a specific 
interval for updating information on marine mammals populations status.
    Comment 23: Commercial passenger fishing vessels should be included 
in the definition of commercial fishing operations. Many of these 
vessels routinely sell their catch in addition to receiving a fee for 
hire.
    Response: NMFS agrees. Commercial passenger fishing vessels are 
already included in the definition of ``commercial fishing operations'' 
in Sec. 229.2.
    Comment 24: It appears that marine mammals taken by foreign vessels 
fishing in proximity to U.S. stocks will be considered as 
``uncontrollable mortality'' and will come ``off the top'' before NMFS 
sets PBR levels. American fishermen will again be forced to bear the 
burden of stock restoration while our foreign counterparts fish 
unrestricted. These regulations may give our foreign competitors a real 
incentive to announce large numbers of marine mammal takes because they 
would then benefit by minimizing or eliminating U.S. competition in the 
global marketplace.
    Response: The calculation of a PBR level for trans-boundary marine 
mammal stocks was considered on a case-by-case basis. General 
guidelines for migratory and non-migratory stocks were developed, but 
were not applied in those instances where the guidelines were 
inconsistent with what is known about the biology of the marine mammal 
stock of concern. For migratory stocks, PBR level calculations are 
generally based upon the portion of a stock found (or proportion of a 
year that a migratory stock spends) in waters under U.S. jurisdiction, 
and mortalities from foreign fisheries were generally included in the 
estimate of total mortality but not in the estimate of fishing 
mortality. For non-migratory stocks, the PBR level was calculated based 
on the abundance estimate of the stock residing in waters under U.S. 
jurisdiction. Restricting PBR calculations in such a manner was 
necessary because NMFS can only regulate incidental mortality and 
serious injury only within waters under U.S. jurisdiction. Because 
mortality and serious injury incidental to foreign fishing operations 
outside the U.S. EEZ do not affect the status of the stock (strategic 
vs. non-strategic) or the estimate of fishing mortality, the PBR 
approach will not effect the ability of U.S. fishers to compete with 
foreign fishers.

Comments on the Prohibition on Intentional Lethal Take

    Comment 25: Some fisheries are facing increasing loss of gear and 
catch because they are no longer able to shoot at marine mammals to 
deter them. The law should be changed so that fishermen can again 
protect their catch and gear.
    Response: The MMPA, as amended in 1994, prohibits intentional 
lethal taking for protection of gear and catch; however, non-lethal 
means of deterring predation by marine mammals are permissible, 
provided they are consistent with guidelines issued by NMFS pursuant to 
section 101(a)(4).
    Comment 26: Where exclusion of previously documented levels of 
intentional lethal taking results in placing a fishery in a lower 
category than under the interim exemption program, NMFS should monitor 
the fishery sufficiently to detect and respond to any illegal 
intentional taking until such time as is justification for concluding 
that little, if any, illegal taking is occurring.

[[Page 45092]]

    Response: NMFS will monitor fisheries to the extent possible given 
appropriations limits and consistent with the priorities for observer 
coverage mandated by section 118(d)(3) and (4) of the MMPA.
    Comment 27: NMFS should clarify whether it believes that the 
prohibition on intentional lethal taking will result in a reduction of 
an elimination of intentional lethal taking. If only a reduction in 
taking is expected, NMFS should indicate whether and how such taking 
will be considered when classifying fisheries.
    Response: Section 118 requires NMFS to classify fisheries based 
solely on incidental serious injury and mortality. Since Congress 
specifically provided for incidental serious injury and mortality in 
section 118 but at the same time prohibited intentional lethal taking, 
NMFS concludes that Congress did not intend for intentional lethal 
taking to be considered a form of incidental serious injury or 
mortality. Thus, for purposes of classifying fisheries based on 
incidental serious injury or mortality, NMFS will not consider 
intentional lethal taking when classifying fisheries under section 118.

Comments on the Requirements for Category I and II Fisheries

    Comment 28: In Sec. 229.4(b)(4) of the proposed rule, it is unclear 
whether the ``fisher'' is the owner or the operator or both. This 
should be clarified in the final rule.
    Response: ``Fisher'' is defined in Sec. 229.2 as the vessel owner 
or operator; thus, fisher may mean both owner and operator. In general, 
``fisher'' is a gender-neutral term that applies to any person who 
fishes.
    Comment 29: Section 229.4(b)(5) of the proposed rule requires the 
owner of a vessel to give the time, duration and location of any 
Category I and II fishery he/she will be participating in during the 
year. Unfortunately, few if any fisheries lend themselves to this type 
of detail, except in very general terms. The timing of many openings 
and closures are totally dependent on how quickly quotas are taken or 
how quickly prohibited species caps are reached. Through no fault of 
the owner, the information provided when registering for an 
Authorization Certificate may be highly inaccurate. Given NMFS's 
ability to revoke or suspend Certificates, this puts owners at great 
risk. NMFS should reconsider the need for this provision or more 
precisely specify the level of detail needed to comply.
    Response: This information requirement is specified in the MMPA. 
The term ``approximate'' that precedes ``time, duration, and location 
of such fishery operations'' in the regulatory text provides 
flexibility for fishers that may not know the precise detail of his/her 
fishing operations in the coming year. The LOF which will be published 
each year by NMFS provides a general descriptive title (e.g., ``Prince 
William Sound set gill net'' or ``U.S. coastal mid-Atlantic gill net'') 
for each fishery which may assist fishers in meeting the information 
requirements of registration. When registering for an Authorization 
Certificate, fishers should review the LOF and use the descriptive 
titles of the Category I or II fisheries in which they plan to 
participate. The fisher should provide NMFS with the best estimate of 
information on the time and duration of the fishing effort if precise 
details are unknown.
    Comment 30: It is unclear whether the Authorization Certificates 
and decal requirements (Sec. 229.4(f)) are directed toward owners, 
vessels or both. The relationship between vessel and owner with respect 
to the Certificates should be clarified.
    Response: The Authorization Certificate and decal requirements 
apply to the owners or operators of the vessels engaged in the fishery. 
In nonvessel fisheries, they apply to the owners or operators of the 
gear. For purposes of Sec. 229, the term ``fisher'' is used as a 
gender-neutral term which means the vessel owner or operator or, in 
nonvessel fisheries, the owner or operator of the gear.
    Comment 31: The language in the proposed Sec. 229.4 should be 
modified to indicate the statutory directive that NMFS ``shall'' 
integrate and coordinate registration under section 118 of the MMPA 
with existing state and Federal fishery management systems. For some 
fisheries (e.g., those in Alaska), all aspects of incidental take 
management should be coordinated with existing programs. Assurance 
should be provided that effective coordination will occur.
    Response: NMFS agrees. The language in Sec. 229.4 has been modified 
to reflect the statutory language.
    While NMFS is under statutory obligation to coordinate registration 
systems with existing fishery management programs when possible, no 
similar obligation exists for reporting of takes, observer programs, or 
enforcement.
    NMFS Regional Offices are in the process of coordinating 
registration under the MMPA with existing state and Federal fishery 
management programs. NMFS recognizes that each region and each state 
will likely proceed with the coordination process at a different rate. 
When coordination in any one area is achieved, a notice to this effect 
will be published in the Federal Register accompanied by instructions 
regarding how and with whom fishers will be required to register.
    Comment 32: NMFS should clarify that registration covers only those 
fisheries in Category I and II identified in the registration form or 
added to the authorization later. NMFS should also explain how and 
where vessels should register if they intend to participate in several 
fisheries.
    Response: One registration per vessel would be required and would 
cover all Category I and II fisheries in which the vessel participates 
during the calendar year. The registration will cover only those 
fisheries in Category I and II identified in the registration form 
(Sec. 229.4(b)(4)) or later added to the authorization 
(Sec. 229.4(f)(4)). Regardless of where they live and unless otherwise 
instructed, fishers should register with the NMFS region where the 
fishery occurs.
    Comment 33: NMFS should clarify that a renewal form must be 
submitted prior to engaging in a Category I or II fishery.
    Response: Pursuant to Sec. 229.4(e), Authorization Certificates 
will be renewed annually, after receipt of an updated registration 
form, required fee, and statement (yes/no) regarding whether any marine 
mammals were injured or killed during the previous calendar year.
    Comment 34: NMFS should clarify that vessels participating in 
Category III fisheries would be required to report incidental injuries 
and mortalities even though they are not required to register. The 
timing requirements of section 118(e) are applicable to vessels 
participating in Category III fisheries; thus, reports must be 
submitted to NMFS with 48 hours of the end of the fishing trip during 
which the take occurred.
    Response: Pursuant to Sec. 229.6(a), all commercial fishers must 
report marine mammal incidental mortalities and injuries regardless of 
which fishery they participate in.
    Comment 35: NMFS should eliminate any ambiguity that marine mammal 
takes other than mortalities and injuries need to be reported.
    Response: If an interaction between a marine mammal and commercial 
fishing operations does not result in a mortality or an injury as 
defined in Sec. 229.2, the fisher need not report the interaction.

[[Page 45093]]


Comments on the Definitions of Fishing Trip and Fishing Vessel

    Comment 36: In the proposed rule, fishing trip is defined as ``any 
time spent away from port actively engaged in commercial fishing 
operations. The end of a fishing trip will be the time of a fishing 
vessel's return to port.'' This definition may not cover nonvessel 
commercial fishing operations such as set gillnet, trap, beach seine, 
weir, ranch and pen fisheries. Section 229.6 of the proposed rule 
stipulates that ``nonvessel fisheries, [must report] within 48 hours of 
an occurrence of an incidental mortality or serious injury.'' Based on 
this requirement, the following text should be added to the definition 
of fishing trip: ``The end of a fishing trip will be the time of a 
fishing vessel's return to port or the return of a fisher from tending 
gear in a nonvessel fishery.''
    Response: Section 229.2 has been modified to clarify the definition 
of fishing trip as applied to nonvessel fisheries.
    Comment 37: NMFS should include two important elements in the 
definition of fishing vessel that were included in the draft document. 
These elements are: (1) All vessels that have valid fishing permits 
issued in accordance with section 204(b) of the Magnuson Fishery 
Conservation and Management Act (Magnuson Act), and (2) all vessels 
aiding or assisting one or more vessels at sea in the performance of 
any activity related to fishing.
    First, it is important, where possible, for the definitions in the 
MMPA to be consistent with the Magnuson Act. Second, the MMPA states 
that NMFS is not required to place an observer on a Category I or II 
vessel if statistically reliable information can be obtained from 
observers on processing vessels to which Category I or II harvesting 
vessels deliver a catch that has not been taken onboard the harvesting 
vessel. While it is clear that the harvesting vessel has taken a marine 
mammal and therefore must be registered and have an Authorization 
Certificate, it is not clear whether the act of a processing vessel 
``taking on board'' a marine mammal as part of the catch of the 
harvesting vessel constitutes a ``take'' under this section. It stands 
to reason that if NMFS intends to place observers on processing 
vessels, those vessels should be registered and included in the 
definition of a ``fishing vessel''.
    Response: The proposed rule would define ``fishing vessel'' as 
``any vessel, boat, or other craft that is used for, equipped to be 
used for, or of a type normally used for fishing.'' This definition is 
broad enough to include vessels that have valid fishing permits issued 
under section 204(b) of the Magnuson Act. The definition of ``fishing 
vessel'' is carried forward from the proposed rule unchanged.

Comments on Reporting Requirements and the Definition of Injury

    Comment 38: The requirement that all entanglements must be reported 
as injuries is excessive and unnecessarily burdensome. What standards 
will NMFS use to determine whether a reported entanglement will be 
considered a serious injury and be counted as a lethal take?
    Response: The regulatory text has been modified such that 
entanglements in fishing gear are not by themselves considered 
injuries. The regulatory text instead states that marine mammals 
released trailing gear will be considered injured.
    Section 118 of the MMPA as amended in 1994 includes both the term 
``injury'' and the term ``serious injury''. These terms are used in 
different portions of section 118. According to the MMPA, fishers must 
report the occurrence of an injury to a marine mammal incidental to 
commercial fishing operation, whereas fisheries must be classified 
based on the number of occurrences of incidental mortalities and 
serious injuries.
    ``Injury'' is defined in great detail because the fisher must be 
provided with objective criteria in order to determine whether an 
incidental interaction with a marine mammal constitutes an injury and, 
hence, whether a report of interaction needs to be submitted to NMFS. 
The fisher will be asked to describe the injury on the reporting form 
using the different descriptions of injury included in the definition.
    ``Serious injury'' is defined more generally to recognize that not 
all incidental injuries to marine mammals incurred during the course of 
commercial fishing are likely to result in a mortality. Injuries 
reported by fishers will be analyzed, taking into consideration the 
type of fishing gear and the marine mammal species affected, to 
determine which are indeed serious injuries. For instance, hooking a 
baleen whale in its mouth may not produce a serious injury, yet hooking 
a harbor porpoise in this manner may produce a serious injury. The 
number of incidental serious injuries of marine mammals in a fishery 
would then be combined with the number of incidental mortalities to 
determine total removal levels for each fishery.
    Comment 39: Expand the preamble to indicate how NMFS will determine 
whether an injury is serious.
    Response: NMFS is currently developing guidelines for determining 
whether a reported injury constitutes a serious injury. NMFS expects 
that this will be done on a fishery-by-fishery, case-by-case basis.
    Comment 40: There is a discrepancy between the definition of 
serious injury in the proposed rule and in the proposed deterrence 
regulations that needs to be addressed. The deterrence regulations 
imply that serious injuries include anything that breaks the skin or is 
directed at the head or eyes of a marine mammal.
    Response: The proposed deterrence guidelines published in the 
Federal Register on May 5, 1995 (60 FR 22345) detailed methods of 
deterrence that NMFS believes can be used safely, without risk of 
causing serious injury or death to a marine mammal. In the proposed 
guidelines, methods such as prodding an animal with blunt poles, 
herding them with plywood, or canvas, or using some light explosives, 
should not break the skin of an animal or be directed toward an 
animal's head or eyes. The intent there was to avoid, to the extent 
possible, deterrence activities that could result in the serious injury 
or death of a marine mammals.
    The proposed deterrence guidelines do not imply that anything that 
breaks the skin or is directed at the head of a marine mammal, 
constitutes a ``serious injury.'' To the contrary, the approach taken 
in the guidelines is consistent with the proposed delineation between 
the definition of ``injury'' and ``serious injury'' in this rulemaking. 
The guidelines conservatively seek to restrict activities that could 
lead to a serious injury or death, and breaking an animal's skin or 
poking at its head or eyes are thought to pose risk of ``injury'' that 
could very well result in serious injury or death.
    Comment 41: What standards will NMFS use to review anecdotal 
reports?
    Response: Under the final rule, in the absence of other 
information, anecdotal reports may be used to classify commercial 
fisheries. These reports will be reviewed by the NMFS Regional Offices 
to determine reliability. Reports will be considered a source of 
reliable information if (1) two or more individuals witnessed the 
interaction, (2) a NMFS employee or contractor witnessed the 
interaction, or (3) a single, reliable person is willing to have his/
her name affiliated with the report. Unverified rumors will not be used 
to categorize a fishery.

[[Page 45094]]

    Comment 42: It is appropriate for NMFS to require the reporting of 
all injuries and entanglements because fishers cannot always 
differentiate whether an animal is injured or seriously injured, 
especially an animal that is trailing gear.
    Response: NMFS agrees.
    Comment 43: The system of incentives established by defining any 
entanglement as injury could result in more marine mammal mortalities, 
not less, since reports of marine mammal entanglement will be used to 
classify fisheries. As a consequence, fishers will know that any animal 
they release alive will ``count against'' them as surely as one that is 
killed. They will also know that the same marine mammal they release 
alive in good condition today may come back to ``count against'' them 
again tomorrow. Under those conditions, there is little incentive for a 
fisherman to bear any risk of personal injury to release a marine 
mammal alive.
    Response: The definition of ``injury'' has been revised in this 
final rule so that entanglements with gear are not considered an 
injury, except when other signs of injury are present. However, NMFS 
may request that fishers voluntarily provide information on 
entanglement to aid in NMFS management of marine mammal interactions 
with commercial fisheries. This information will not be used in the 
calculation of annual serious injury and mortality rates.
    Comment 44: The definition of injury should be amended to include 
any animal that is released with fishing gear entangling, trailing or 
perforating any part of the body.
    Response: NMFS agrees. The definition if ``injury'' was revised to 
reflect this concern.
    Comment 45: The provision under Sec. 229.7(b)(1) in the proposed 
rule reads: ``Record incidental mortality and injury, or bycatch of 
other target species.'' However, the provision as stated in section 
118(d)(2)(A) of the MMPA uses the term ``nontarget species''. NMFS 
should change the provision in the final rule from ``target'' to 
``nontarget'' to mirror the language of the MMPA.
    Response: NMFS agrees. Section 229.7(b)(1) has been modified to 
reflect the statutory language.
    Comment 46: The logbook requirement should not be dropped from the 
new regulations because logbooks provide NMFS with important management 
data to track kills of marine mammals by fishing vessels.
    Response: The MMPA, as amended in 1994, no longer requires fishers 
to submit logbooks as previously mandated for participants in Category 
I or II fisheries under the Interim Exemption Program. However, all 
fishers are required to report any mortality or injury that occurs 
incidental to commercial fishing operations. Although these reports do 
not provide information on day-to-day fishing effort, they will provide 
information on marine mammal removal levels incidental to each fishery.
    Comment 47: The new postcard method of reporting takes and injuries 
of marine mammals is preferable to the old method of requiring fishers 
to maintain a marine mammal log. Most fishers already complete fishing 
logbooks for NMFS or state fisheries agencies. These agencies should be 
able to share the effort data currently requested in the marine mammal 
logs.
    Response: NMFS agrees. NMFS Science Centers are currently using 
information on fishery effort obtained from fishing logbooks, and will 
expand this capability as more logbooks become available.
    Comment 48: NMFS should provide an identification key to help 
fishers identify marine mammal species and report interactions more 
accurately.
    Response: NMFS is currently preparing region-specific guides to aid 
in the identification of marine mammals and will make them available to 
fishers.
    Comment 49: Self reporting on postcards will fail. Fishers 
recognize that NMFS only uses data to their detriment. Therefore, few 
if any, takes will be voluntarily reported.
    Response: All fishers are required by the MMPA to report, within 48 
hours of returning to port, any injury or mortality of a marine mammal 
that occurred incidental to commercial fishing operations. If a fisher 
in a Category I or II fishery fails to report an incidental injury or 
mortality, the Assistant Administrator is required to suspend or revoke 
the fisher's authorization to take marine mammals. If a fisher does not 
have a valid authorization and a marine mammal take occurs, the fisher 
may be subject to civil or criminal penalties.
    Comment 50: The proposed rule states that NMFS may determine that a 
stock is strategic if it is declining and likely to be listed under the 
ESA. NMFS should expand this discussion to provide guidance as to when 
listing under the ESA would be considered likely.
    Response: Whether a listing of a marine mammal stock under the ESA 
is likely depends on the circumstances specific to each situation and 
must therefore be analyzed on a case-by-case basis. It is therefore not 
possible to be more specific at this time.

Comments on Authorization Certificates

    Comment 51: The Authorization Certificate section of part 229 
should be amended so that Authorization Certificates may specify the 
terms and conditions of such authorized incidental taking, including 
any document that modifies the certificate. Examples may be the terms 
and conditions necessary to implement take reduction plans or emergency 
regulations (e.g., time/area closures, permits, or fishery specific 
limits on incidental mortality). This is important as fishers should be 
aware of any such restrictions.
    Response: There is no authority under the MMPA, as amended in 1994, 
to specify terms and conditions in the Authorization Certificate. 
Restrictions such as time/area closures and fishery specific limits on 
incidental mortality will be established through the take reduction 
plans and their implementing regulations. Fishers will be made aware of 
any such restrictions through announcements in the Federal Register, 
letters, press releases, and other forms of notification.

Comments on Observer Coverage Requirements

    Comment 52: Section 229.7(c)(2) of the proposed rule gives 
authority to the ``designated contractor'' to tell a vessel owner that 
they require an observer and Sec. 229.7(c)(3) allows the ``designated 
contractor'' to waive the observer requirement. These regulations 
appear to give extraordinary authority to a ``designated contractor'', 
yet do not identify the types of entities who might be contractors or 
specify how NMFS will designate contractors. Does NMFS intend to 
designate states or the Coast Guard as contractors, or will private 
consultants be used? Where does NMFS derive the authority to give 
contractors the power anticipated by this regulation? At a minimum, 
NMFS should specify in the rule the guidelines under which contractors 
will operate, as well as which entity within NMFS will hire them.
    Response: Section 112(c) of the MMPA authorizes NMFS to ``Enter 
into such contracts * * * or other transactions as may be necessary to 
carry out the purposes of this title * * * and on such terms as it 
deems appropriate with any Federal or state agency, public or private 
institution or other person.''
    The extent of contractor involvement in observer programs varies 
considerably among regions and observed fisheries. Some observer 
programs are operated completely ``in-house'' by Federal or state 
agencies. In other programs, responsibilities are 

[[Page 45095]]
shared between contractors and the managing agency. Finally, in some 
observer programs, a private contractor may handle virtually all 
aspects of the program, including monitoring program design, hiring and 
training of observers, analysis of data and production of reports. In 
programs operated primarily by contractors, the contractor must have 
the ability to place observers as necessary to allow for the collection 
of unbiased and accurate data. In all cases where contractors have been 
authorized to assign or waive observer coverage for specific vessels, 
the contractors are bound by the same laws and regulations as the 
agency, and prohibited from discriminating among vessels. NMFS is 
currently preparing national guidelines for the hiring of contractors 
and the placement of observers by contractors.
    Comment 53: NMFS must obtain more male observers for vessels with 
little or no accommodations for females aboard. This is primarily a 
problem for small vessels which may not be able to provide private 
sleeping and toilet facilities for female observers.
    Response: NMFS is aware of the unique living conditions and lack of 
privacy aboard many fishing vessels at sea. However, Federal law 
prohibits discrimination based on gender, age, national origin, 
religion or race. NMFS does not discriminate on the basis of sex in 
either the hiring or the placement of observers. Vessel owners, 
operators, and crews are expected to reasonably accommodate the needs 
of female observers. Special circumstances such as the small size of a 
vessel may mean a different level of accommodation than on a large 
vessel.
    Comment 54: Moving observers from one vessel to another at sea is 
very dangerous without special boarding equipment that many small 
vessels may not have. Vessels and their crews also face risks if they 
must come along side at sea for the purpose of transferring observers. 
Transfers at sea should not be left to the discretion of the observers, 
many of whom may be inexperienced at sea. Rather, the practice should 
be discouraged or prohibited. If NMFS allows the practice to continue, 
the government should provide liability coverage for both the vessels 
and observers.
    Response: Observer and vessel safety is a primary concern of all 
NMFS observer programs, and safety at-sea is one of the most important 
elements in all observer training programs. However, because conditions 
and practices within U.S. fisheries vary greatly from region to region, 
guidelines for observer safety and conduct must be tailored to specific 
fisheries. It is currently the responsibility of program managers to 
establish safety guidelines for observers, including guidelines for 
such practices such as at-sea transfers which are discouraged except 
under limited conditions. NMFS is preparing national guidelines to 
address a variety of safety concerns such as at-sea transfers.
    Comment 55: The requirement that vessel owners or operators must 
notify the observer program 5 days prior to sailing impacts the 
fisher's need to be flexible with regard to weather patterns and other 
fishing conditions. Also, fishers have found that despite giving 5-days 
notice, observers are not always available at sailing time.
    Response: NMFS recognizes the uncertain scheduling inherent in many 
fisheries. However, advance notification is essential in order for 
program managers to be able to randomly place observers on vessels.
    Comment 56: Many vessel owners and operators are concerned with 
potential liability for carrying observers. NMFS should resolve the 
liability issue and use a ``willful misconduct'' standard against which 
vessels owners or masters will be measured in the case of injury to an 
observer.
    Response: Section 114(e)(7) provided that an observer on a vessel 
that was ill, disabled, injured, or killed from their service as an 
observer on that vessel could not bring a civil action under any law of 
the United States for that illness, disability, injury, or death 
against the vessel or vessel owner, unless the claim arose from the 
vessel owner's ``willful misconduct.'' That expiring statutory 
provision was implemented in NMFS' section 114 regulations at 50 CFR 
229.6(c)(3)(vi).
    New section 118, which is being implemented by this rulemaking, 
replaces section 114. Section 118 does not contain a limitation of 
liability provision similar to the one in section 114(e)(7). Thus, 
there is no longer a statutory limit in the MMPA on claims that can be 
made by observers against vessel owners. Therefore, NMFS has no legal 
authority to include a limitation of liability provision in this rule. 
Vessel owners concerned about liability for claims made by observers 
should consider obtaining liability insurance. The lack of any such 
coverage is not a basis under the MMPA for refusing to carry an 
observer if requested by NMFS.

Comments on the Prioritization of Observer Coverage

    Comment 57: The prioritization scheme for allocation of observer 
programs among commercial fisheries should be included in the 
regulations. At the minimum, NMFS should specify in the regulations 
that it will assign observers in accordance with the statutory 
priorities.
    Response: Because the prioritization scheme is clearly outlined in 
section 118(d)(4)(A) - (C) and is not open to NMFS discretion, it is 
not necessary to repeat the scheme in the regulations.

Comments on the Formation of Take Reduction Teams

    Comment 58: NMFS should clarify the time line for the formation of 
take reduction teams.
    Response: Take reduction teams must be established and a notice 
must be published in the Federal Register indicating the team's 
establishment, the names of the team's appointed members, the full 
geographic range of the stock, and a list of all commercial fisheries 
that cause incidental mortality and serious injury of marine mammals 
from the stock within 30 days of the publication of the final Stock 
Assessment Reports. After establishment of a take reduction team, the 
time line depends on whether the human-caused mortality and serious 
injury from a strategic stock is equal to or greater than the PBR level 
or is less than the PBR level.
    Teams addressing takes of marine mammals in a strategic stock where 
the level of take is greater than or equal to the PBR level must submit 
draft take reduction plans to NMFS within 6 months of the establishment 
of the team. Within 60 days of receiving the draft take reduction plan, 
NMFS must publish in the Federal Register the plan proposed by the 
team, any changes proposed by NMFS, and proposed regulations to 
implement the plan. These proposed regulations will have a public 
comment period of up to 90 days. NMFS must issue final regulations not 
later than 60 days after the end of the public comment period. If the 
take reduction team does not submit a draft plan to NMFS within 6 
months, NMFS must publish a proposed take reduction plan and 
implementing regulations within 8 months of the establishment of the 
take reduction team.
    Teams addressing takes of marine mammals in a strategic stock where 
the level of take is greater than or equal to the PBR level must submit 
draft take reduction plans to NMFS within 11 months of the 
establishment of the team. Within 60 days of receiving the draft take 
reduction plan, NMFS must publish in the Federal Register the plan 
proposed by the team, any changes proposed by NMFS, and proposed 
regulations to implement the plan. These proposed regulations will have 
a 

[[Page 45096]]
public comment period of up to 90 days. NMFS must issue final 
regulations not later than 60 days after the end of the public comment 
period. If the take reduction team does not submit a draft plan to NMFS 
within 11 months, NMFS must publish a proposed take reduction plan and 
implementing regulations within 13 months of the establishment of the 
take reduction team.

Comments on Technical Changes to the Publication of the List of 
Fisheries

    Comment 59: Modify the preamble and regulatory text so it is clear 
that each instance where a fisher engaged in a Category I or II fishery 
without having registered would constitute a violation of the Act 
regardless of whether marine mammals were incidentally taken. Add the 
phrase ``or to engage lawfully in any such fishery'' to Sec. 229.4(a) 
after ``in a Category I or II fishery * * *.''
    Response: The MMPA authorizes commercial fishers to incidentally 
take marine mammals subject to compliance with these regulations, but 
does not authorize commercial fishers to fish. This interpretation is 
supported in section 118(c)(3)(A) by such phrases as ``[a]n owner of a 
vessel engaged in any fishery in Category I or II shall, in order to 
engage in the lawful incidental taking of marine mammals in a 
commercial fishery * * * `` register with NMFS, display a decal, report 
takes of marine mammals, and comply with take reduction plans. This 
language is in marked contrast to the language it replaced in section 
114(b)(3)(A), which said ``each owner of a vessel engaged in any 
fishery [in Category I or II] shall, in order to engage lawfully in 
that fishery * * * `` register, display a decal, and report. This 
interpretation is supported by the limited legislative history of 
section 118. Thus, a violation of the MMPA requirement to comply with 
section 118 of the MMPA would not subject fishers to charges of illegal 
fishing under the MMPA. Rather, the fishers would be subject to 
violating the MMPA if they illegally incidentally took a marine mammal, 
and for failing to register, report, carry observers, and comply with 
take reduction plans. Section 229.4(b) was modified to clarify that all 
participants in Category I and II fisheries must register and receive 
Authorization Certificates.
    Comment 60: Incidental mortality and serious injury data should be 
summarized and included in the proposed and final LOF.
    Response: This requirement is not included in the MMPA, as amended 
in 1994. Although the most recent data are used when revising the LOF 
on an annual basis, inclusion of this data in the LOF would be 
cumbersome and unnecessary. This information is generally provided in 
the preamble accompanying the proposed and final LOF. Current 
information on take rates is provided in the EA.

Comments on Penalties

    Comment 61: The penalty process described in the preamble to the 
proposed rule would violate the due process rights of Certificate 
holders. In addition, the preamble and proposed rule are inconsistent 
on the remedies NMFS may seek if a Certificate holder fails to submit a 
required report. The preamble states that NMFS would be able to suspend 
or revoke a Certificate or deny a Certificate renewal without notice or 
an opportunity for a hearing if the Certificate holder fails to file a 
report or fails to take an observer on board as requested. However, 
Sec. 229.10(g)(1) of the proposed rule provides that the Assistant 
Administrator shall suspend, revoke or deny renewal of a Certificate in 
accordance with 15 CFR part 904 in connection with either of those 
violations.
    15 CFR part 904 contains notice and hearing requirements associated 
with civil penalty and permit sanction actions for MMPA violations, 
hence, the inconsistency between the preamble and proposed rule. In 
addition, the NOAA Alaska Regional Counsel prepared a legal analysis on 
the topic of due process and ``reward fisheries''. This legal analysis 
supports these due process requirements for fisheries regulations. NMFS 
should therefore assure that all permit sanction and penalty actions 
are conducted in accordance with the notice and hearing requirements of 
15 CFR 904.30.
    Response: The inconsistency between the preamble to the proposed 
rule and Sec. 229.10(g)(1) had been resolved in this final rule so that 
compliance with 15 CFR 90 is required.

Comments on the Exclusion of Treaty Tribe Fisheries

    Comment 62: Several commenters objected to the exclusion of Treaty 
Indian Fisheries from the LOF and the registration requirements 
contained in these regulations. The commenters felt that the by-catch 
of marine mammals during treaty fishing activities should not be 
considered part of the treaty right to hunt and fish and that tribal 
fisheries and the incidental takes of marine mammals during tribal 
fishing should be regulated and monitored to conserve marine mammal 
species.
    Response: NMFS is issuing these regulations to authorize the 
otherwise prohibited taking of marine mammals during commercial fishing 
operations. However, the rights to fish and hunt are already secured 
separately for the Northwest Indian tribes pursuant to their treaties 
with the United States. NMFS reviewed the relationship of the Northwest 
Indian treaties to the MMPA and did not find clear evidence that 
Congress intended to abrogate treaty Indian rights. Section 14 of the 
Amendments to the MMPA (Pub. L. No. 103-238) states ``Nothing in this 
Act, including any amendments to the Marine Mammal Protection Act of 
1972 made by this Act--alters or is intended to alter any treaty 
between the United States and one or more Indian tribes.'' This 
provision clarifies that existing treaty Indian fishing rights are not 
affected by the amendments to the MMPA. Therefore, tribal fisheries are 
conducted under the authority of the Indian treaties rather than the 
MMPA, and the MMPA's mandatory registration systems do not apply to 
treaty Indian fishers operating in their usual and accustomed fishing 
areas. Since inclusion of the treaty Indian fisheries in the LOF would 
also establish an obligation to obtain an MMPA registration under 
section 118, NMFS has deleted reference to tribal fisheries in the LOF. 
The registration requirement for Category I or II fisheries will not 
apply to treaty Indian tribes.
    In recent years, tribal governments have developed regulations for 
the management of tribal fishing under the treaties. NMFS and other 
fisheries regulatory agencies have participated with the tribes during 
this regulatory development. Several northwest tribes have implemented 
and others are in the process of developing regulations for the 
management of tribal activities with respect to marine mammals. The 
tribes have cooperated, and indicate that they will continue to 
cooperate with NMFS in gathering and submitting data on interactions of 
their fisheries with marine mammals so that the health of affected 
stocks can be monitored.
    Comment 63: Several commenters indicated that tribal fisheries kill 
depleted species and therefore should be regulated by the government. 
They cite species listed in previous NMFS LOF as the source of this 
information.
    Response: The NMFS LOF, prepared under the Interim Exemption 
Program, included all species known to be in the area where a fishery 
is operating, not just species killed in the fishery. The LOF were 
intended to provide an indication of a potential for involvement but 
were not intended to imply mortality or confirmation of incidental 
takes. The LOF for 1996 will indicate 

[[Page 45097]]
which species are known to interact with fishing gear in the various 
fisheries based on data collected during the interim program.
    There is no indication that tribal fisheries are killing depleted 
species. In the event that this occurs, the treaty rights principle of 
``conservation necessity'' can be considered, and the Department of 
Commerce will consult with the Department of Interior regarding the 
exercise of regulatory authority in order to protect marine mammals.

Comments on Emergency Regulations

    Comment 64: The proposed rule allows NMFS to implement emergency 
actions immediately for up to 180 days. How will NMFS notify fisheries 
participants, especially those who may be at sea at the time of the 
emergency action?
    Response: When emergency regulations are implemented, NMFS regional 
offices generally publicize them to the greatest extent practicable 
through such means as press releases to the media and affected industry 
organizations, faxes, computer bulletin boards and radio announcements, 
in addition to publication in the Federal Register. NMFS believes that 
these means of notification are sufficient to reach participants who 
may be at sea at the time of the emergency action.
    Comment 65: The closure authority in the proposed rule is too 
great. How can any fisher survive a closure of up to 9 months?
    Response: NMFS recognizes that the closure authority provided by 
section 118(g) is considerable. However, section 118(g)(2) requires 
NMFS to consult with the Marine Mammal Commission, all appropriate 
regional fishery management councils, state fishery managers, and the 
appropriate take reduction team (if established) before it may take any 
action under section 118(g)(2). Moreover, any emergency regulation 
issued under 118(g) must ``take into account the economics of the 
fishery concerned and the availability of existing technology to 
prevent or minimize incidental taking of marine mammals.'' Any 
emergency regulations issued must, to the maximum extent practicable, 
avoid interfering with existing state or regional fishery management 
plans. These consultation requirements will ensure that participants in 
a fishery will be impacted only when that fishery has severe adverse 
effects on a marine mammal species.

Comments on the Section 118 Rulemaking Process

    Comment 66: The Regulatory Flexibility Act finding in the preamble 
to the proposed rule states that there will be no significant economic 
impact as a result of these regulations on a substantial number of 
small entities. This analysis only looks at the fees charged for 
Authorization Certificates and does not consider any impacts fishers 
may face in meeting the ZMRG. There are likely to be significant 
economic impacts in many fisheries if they are forced to shut down or 
undergo drastic restrictions to meet the ZMRG.
    Response: The analysis was limited to the direct costs of the 
industry compliance with the proposed rule for several reasons. First, 
the section 118 regulations implement a program relieving fishers from 
the MMPA's prohibition on the taking of marine mammals. Without the 
section 118 regulations, fishers would face civil and criminal 
penalties for every incidental take of marine mammals.
    Second, fisheries which have significant removals of strategic 
stocks of marine mammals will be addressed by take reduction teams. 
These teams, consisting of members of the fishing industry, 
environmental community, NMFS, and others as outlined in section 
118(f)(6)(C), will work together to develop a plan for reducing bycatch 
in a manner that is acceptable to all parties. The teams are likely to 
recommend changes in fishing techniques, time-area closures, or 
deterrence methods; full closure of a fishery or drastic restrictions 
in fishing effort would likely be a last resort. Any regulations 
adopted as a result of take reduction plans would be subject to both 
E.O. 12866 review and the requirements of the Regulatory Flexibility 
Act.
    Comment 67: The period for public comment and public hearings 
corresponded with the busiest fishing periods for fishers when they are 
away from home and regular mail service.
    Response: Because the interim exemption program is scheduled to 
expire September 1, 1995, NMFS was forced to accelerate the rulemaking 
schedule in order to have a new management regime in place to govern 
interactions between commercial fisheries and marine mammals before 
that date. NMFS regrets that some fishers were not able to attend one 
of the public hearings, and hopes they took the opportunity to submit 
written comments on the proposed rule.
    Comment 68: Why are there no public hearings south of North 
Carolina in the Atlantic nor any in the Gulf of Mexico? Fisheries from 
those regions are covered under the regulations and should have an 
opportunity to comment on the proposed regulations.
    Response: Hearing locations and dates were scheduled by NMFS 
managers at regional offices and science centers throughout the 
country. Because there is no appreciable effort by Category I or II 
fisheries in the Gulf of Mexico, hearings were concentrated in other 
regions where fishers will be more directly impacted by the rule. In 
any event, fishers from all regions of the United States were 
encouraged to submit written comments during the 45 day comment period 
for the proposed rule.
    Comment 69: NMFS' notice of public hearings was inadequate. Many 
fishers received 2 days notice of the closest hearing, which was still 
some 300 to 500 miles away.
    Response: See responses to comments 67 and 68.
    Comment 70: Longliners are most active when the moon is full and 
fishing is best. Therefore, public hearings involving longliners should 
only be scheduled during the dark half of the moon.
    Response: See response to comment 67.

Comments on Takes of Threatened and Endangered Marine Mammals

    Comment 71: Section 229.20(a)(3)(i) should require that all vessels 
interacting with threatened or endangered marine mammals be subject to 
observer coverage regardless of fishery category.
    Response: There is no authority in the MMPA, as amended, to require 
full coverage regardless of fishery category. However, the highest 
priority for allocation of observers are those fisheries that have 
incidental mortality or serious injury of marine mammals listed as 
threatened or endangered under the ESA.
    Comment 72: It is unclear from the proposed rule how NMFS proposes 
to make the determination whether ``the incidental mortality and 
serious injury from commercial fisheries will have a negligible impact 
on such species or stock (Sec. 229.20(a)(1)). Is NMFS considering a 
quantifiable biological level of incidental mortality and serious 
injury relative to the PBR level?
    Response: NMFS is considering both quantitative and qualitative 
factors in its approach. There will be a quantitative threshold based 
on serious injuries and mortalities relative to the PBR level. If 
serious injuries and mortalities of a particular marine mammal stock 
are over that threshold, a qualitative 

[[Page 45098]]
assessment of the level of take relative to that threshold will then be 
conducted. Factors that NMFS will consider in a qualitative manner may 
include, but will not be limited to, confidence in the marine mammal 
population estimate and the resulting PBR level, confidence in the 
status of the marine mammal population, confidence in the level of 
marine mammal take in a fishery, and the cumulative impact of all 
fishery takes on a stock.
    Comment 73: NMFS should not allow incidental takes of threatened or 
endangered marine mammal species because it will be too easy to claim 
that deliberate or careless taking of these species was merely 
``incidental''.
    Response: The MMPA, as amended, provides NMFS with the authority to 
issue permits to fishers for taking in specific fisheries of species 
listed under the ESA as long as (1) takes have a negligible impact on 
the marine mammal stock, (2) a recovery plan has been developed or is 
being developed, and (3) where required under section 118, a monitoring 
program is established, vessels engaged in such fisheries are 
registered, and a take reduction plan has been developed or is being 
developed. Each fishery that has takes of ESA-listed species or stocks 
will be carefully scrutinized by NMFS to determine whether the takes 
can be considered negligible.
    Comment 74: NMFS should clarify that, in addition to being able to 
modify, suspend, or revoke the incidental take authority for endangered 
and threatened species when the level of taking is more than 
negligible, NMFS may also invoke section 101(a)(5)(E)(ii), which allows 
NMFS to use the emergency authority of section 118 to protect the 
species or stock.
    Response: Pursuant to Secs. 229.20(e) and 229.9, NMFS may use 
emergency regulations in addition to being able to modify, suspend, or 
revoke the incidental take authority for endangered and threatened 
species when the level of take is later found to be more than 
negligible.
    Comment 75: The information upon which negligible impact findings 
under section 101(a)(5)(E) will be made is not provided in sufficient 
detail for informed comments to be made. Therefore, NMFS should publish 
a notice that clearly describes the stocks and fisheries for which it 
proposes to make a finding of negligible impact and explain the basis 
for the proposed determinations.
    Response: NMFS agrees that information included in the proposed 
rule and EA was insufficient to promote informed comments. However, 
NMFS was unable to provide a complete analysis of stocks listed as 
endangered or threatened under the ESA on a fishery-by-fishery basis in 
a time frame that would not delay publication of the proposed rule. 
Therefore, NMFS will publish a separate interim final notice that 
includes a list of fisheries that have met the criteria listed under 
section 101(a)(5)(E)(i) of the MMPA and that will explain, in greater 
detail, the process by which negligible impact determinations have been 
made. The public will have an opportunity to comment on the list of 
fisheries that will be authorized to take endangered and threatened 
species, as well as the process used for determining that serious 
injuries and mortalities due to commercial fishing are indeed 
negligible. NMFS expects to publish this interim final rule in the 
Federal Register by September 1, 1995.

Comments Recommending Technical Changes to the Regulatory Text

    Comment 76: NMFS should clarify in Sec. 229.1(c) that the taking of 
species listed as depleted under the MMPA, as well as those listed as 
threatened or endangered under the ESA, are governed by section 
101(a)(5)(E)(i) of the MMPA.
    Response: NMFS does not agree. Section 101(a)(5)(E)(i) of the MMPA 
applies only to a species designated as depleted because of its listing 
as threatened or endangered under the ESA. Thus, species listed as 
depleted through the procedures in section 115 of the MMPA, but not 
also listed as threatened or endangered under of section 4 of the ESA 
are not subject to the requirements of section 101(a)(5)(E)(i) of the 
MMPA and are only subject to the requirements of section 118.
    Comment 77: NMFS should add mention of the short-term goal to 
Sec. 229.1(g) to reflect the statutory goals to reduce mortality and 
serious injury to below PBR.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 78: NMFS should further clarify the definition of 
``interaction'' by specifying that the marine mammal must come into 
contact with gear or catch.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 79: The definition of take reduction teams in Sec. 229.2 
should be modified to include the word ``recommend'' instead of 
``review'' to better reflect the purpose of the teams.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 80: Expand Sec. 229.3(b) regarding the prohibition on 
interfering with observers to include attempted interference. This 
could be completed by rephrasing the second sentence to ``This 
prohibition includes, but is not limited to, any action that interferes 
with or attempts to interfere with an observer's ability to carry out 
his or her responsibilities * * * ``
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 81: In Sec. 229.4(b), NMFS should include a statement to 
the effect that the specified information must be submitted in a 
particular format.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 82: In Sec. 229.4(b)(3), NMFS should ask registrants to 
supply their radio call signs.
    Response: NMFS has no authority to require fishers to supply this 
information when submitting a registration form.
    Comment 83: Modify the language in Sec. 229.4(b)(4) to indicate 
that fishers should list all fisheries they ``may engage in'' or 
``intend to engage in'' during the calendar year, as the fisher may not 
necessarily know all fisheries that they will be engaged in during the 
upcoming year.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 84: In Sec. 229.4(e), NMFS should specify that renewal of 
an Authorization Certificate will be contingent upon compliance with 
other provisions of the incidental take regime, e.g., the reporting 
requirements, the requirement to carry an observer when requested, etc. 
Such requirements should also be included in this provision.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 85: Modify Sec. 229.4(j)to clarify that a fisher may only 
deter a marine mammal if that marine mammal interacts with the fisher's 
gear or catch, not just any gear or catch.
    Response: NMFS agrees. Only the owner and/or operator of a 
commercial fishing vessel or gear in nonvessel fisheries or the 
designee of the owner/operator may deter a marine mammal if that marine 
mammal interacts with the owner/operator's gear or catch.
    Comment 86: Modify Sec. 229.6(a)(4) to require that fishers provide 
a description of the marine mammal on 

[[Page 45099]]
the reporting form if the species is uncertain.
    Response: This provision is already included in Sec. 229.6(a)(4).
    Comment 87: Modify Sec. 229.6(b) to replace the word ``include'' 
with the word ``provide''.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 88: Modify Sec. 229.7(b)(1) to replace the word ``or'' with 
the word ``and''.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 89: Modify Sec. 229.7(c)(4)(vi) and (vii) to allow 
observers to collect biological samples from all protected species and 
not just marine mammals.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 90: Modify Sec. 229.7(c)(4)(viii) to remove the word 
``commercial'' before ``fishing operations'' so that experimental or 
other types of fishing will not be excluded.
    Response: Section 118 of the MMPA, by its terms, applies only to 
``commercial fishing operations''.
    Comment 91: Modify Sec. 229.7(c)(5) to replace the word ``aboard'' 
with ``onboard''.
    Response: In this context, NMFS interprets the terms ``aboard'' and 
``onboard'' to have the same meaning.
    Comment 92: Modify Sec. 229.7(d)(2) to indicate that the vessel 
owner and/or operator must comply with the requirements of 
Sec. 229.7(c).
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 93: Modify Sec. 229.8(b)(1) to replace the word ``for'' 
with the word ``of''.
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 94: Modify Sec. 229.10(a) to clarify that ``any person who 
violates any regulation under this Part or any provision of section 118 
of the MMPA shall be subject to the penalties set forth in the Act.''
    Response: NMFS agrees. The regulatory text was modified to this 
effect.
    Comment 95: Modify Sec. 229.10(c) to state that up to $100 could be 
fined for each offense.
    Response: The language in Sec. 229.10(c) is clear as it stands.
    Comment 96: Modify Sec. 229.10(e) to indicate that, in addition to 
fishers being subject to suspension, revocation, or denial of their 
Authorization Certificate until the requirements have been satisfied, 
they are also subject to other penalties, such as fines, for the 
failure to report.
    Response: NMFS agrees. The regulatory text has been modified to 
this effect.

Other Changes from the Proposed Rule

    The following is a list of other changes from the proposed rule 
that were not previously mentioned in the preamble or response to 
comments section, or were not made for editorial consistency:
    Section 229.1(a) - Replaced ``exceptions from the Act's moratorium 
on the taking of marine mammals incidental to certain commercial 
fishing operation'' with ``for exceptions for the taking of marine 
mammals incidental to certain commercial fishing operation from the 
Act's general moratorium on the taking of marine mammals'' to more 
precisely state the purpose of section 118 of the MMPA.
    Section 229.1(c) - Deleted ``this part'' and replaced with 
``Subpart B'' to make it clear that this section refers to Subpart B of 
the section 118 implementing regulations.
    Section 229.2 - Deleted ``annual'' from the last sentence in the 
definition of a Category II fishery. This will allow NMFS to reclassify 
a fishery categorized by default into Category II at times other than 
at the annual review and publication of the list of fisheries.
    Section 229.3(f) - Deleted ``(f) It is prohibited to willfully 
discard any fishing gear at sea, in whole or in part.'' Coast Guard 
regulations already prohibit the discarding of fishing gear at sea.
    Section 229.3(g) - Renumbered this provision as 229.3(f). Add ``or 
any provision of section 118 of the Act'' to the end of the existing 
provision.
    Section 229.4(a) - Deleted ``may'' and replace with ``shall'' so 
the sentences reads as follows: ``The granting and administration of 
authorizations under this part 229 shall be integrated and coordinated 
with existing fishery license, registration, or permit systems and 
related programs, wherever possible.''
    Section 229.4(d) - Added ``the NMFS Regional Office in the region 
where the fishery occurs. The addresses of the NMFS Regional Offices 
are given below:'' to specify that fishers should request registration 
forms and submit completed registration forms to the region in which 
their fishery occurs.
    Section 229.9(c)(1) - Deleted ``will take effect immediately upon 
publication in * * * `` and added ``Shall be published in * * *'' to 
allow agency discretion as to when an emergency rule will take effect.
    Section 229.10(e) - Added ``will subject such persons to the 
penalties of sections 105 and 107, and may subject them to section 106, 
of the Act'' to make this section read: ``requirements to carry an 
observer, will subject such persons to the penalties of sections 105 
and 107, and may subject them to section 106, of the Act and will 
result in suspension, * * *.'' This change is necessary to parallel 
Sec. 229.10(f), so that it is clear that fisheries in all categories 
will be subject to the penalties of sections 105 and 107, and possibly 
section 106, of the Act for failure to report, carry observers, display 
an annual decal, and comply with take reduction plans.
    Section 229.10(f) - Replaced ``to the full penalties'' with ``to 
the penalties of sections 105 and 107, and may subject them to section 
106, * * *.''
    Section 229.20(c) - Added ``can be made'' to make this sentence 
complete.
    Section 229.20(f) - Delete ``temporarily'' and add ``pursuant to 
the provisions of 15 CFR Part 904'' so the first sentence of this parts 
reads as follows: ``The Assistant Administrator may, pursuant to the 
provisions of 15 CFR Part 904, suspend or revoke a permit granted under 
this section if the Assistant Administrator determines that the 
conditions or limitations set forth in such permit are not being 
complied with.''

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Small Business Administration 
that, as proposed, this rule would not have a significant economic 
impact on a substantial number of small entities. The rule establishes 
a process for issuance of authorizations for the incidental taking of 
marine mammals while conducting commercial fishing in the U.S. 
territorial seas, the EEZ and the high seas. Without these 
authorizations, the taking of marine mammals is prohibited and fishers 
could be subject to civil and criminal penalties when takings occur in 
the course of commercial fishing operations. The payment of a fee set 
to recover the costs of certificate issuance is required to obtain an 
Authorization Certificate. While the amount of such fee has not yet 
been determined, it would cost no more than approximately $30. 
Approximately 20,000 fishers are currently required to register under 
the old interim exemption regime and pay 

[[Page 45100]]
a similar fee. This number is not expected to increase under the new 
regime.
    This final rule does not contain policies with federalism 
implications sufficient to warrant preparation of a federalism 
assessment under E.O. 12612.
    This final rule contains collection-of-information requirements 
subject to the provisions of the Paperwork Reduction Act. These 
collections have been approved by OMB under OMB control numbers 0648-
0224 and 0648-0225.
    The average reporting burden for these collections is estimated to 
be approximately 0.25 hours for each of approximately 20,000 fishers to 
register each year and 0.17 hours for each report of marine mammal 
injury or mortality. Because fishers are required by section 118(e) of 
the MMPA to submit a report for marine mammal injuries or mortalities 
at the end of each fishing trip, there may be multiple reports required 
per fisher.
    The Assistant Administrator finds that it is unnecessary to delay 
for 30 days the effective date of most of the provisions of this final 
rule, because under 5 U.S.C. 553(d), this rule relieves a restriction, 
constitutes statements of agency policy, or good cause exists to waive 
the 30 day delay because a delay would be contrary to the public 
interest.
    Without this rule, all takes of marine mammals incidental to 
commercial fishing operations would subject fishers to civil or 
criminal penalties as of Sept. 1, 1995. This rule provides for the 
authorization of such takes, relieving a restriction that would 
otherwise be imposed on commercial fishers. The provisions of sections 
229.1 (Purpose and Scope) and 229.2 (Definitions) are statements of 
agency policy and/or related to relieving a restriction. Delay in their 
effective date is unnecessary in that it would serve no useful purpose. 
Section 229.3 (Prohibitions) in large part repeats statutory 
prohibitions or restates existing prohibitions under earlier 
regulations. Delay in its effective date is unnecessary in that it 
would serve no useful purpose; moreover, good cause exists for waiving 
the 30- day delay, because delay would be contrary to the public 
interest. Sections 229.4 (Requirements for Category I and II fisheries) 
and 229.5 (Requirements for Category III fisheries) relieve a 
restriction since they authorize fishers in Category I, II, and III 
fisheries to lawfully incidentally take marine mammals during 
commercial fishing operations. Section 229.6 (Reporting) does not 
become effective until January 1, 1996. Section 229.7 (Monitoring of 
incidental mortalities and serious injuries) in large part restates 
provisions in earlier regulations or repeats statutory requirements. 
Further, it is directly related to relieving a restriction because the 
statutory language makes relief dependent on the section's 
requirements. Section 229.8 (Publication of list of fisheries) is 
procedural and under 5 U.S.C. 553(d) is not subject to a delay in 
effective date. Further, in large part it only governs internal agency 
procedures.
    Good cause exists for waiving the 30-day delayed effective date for 
sections 229.9 (Emergency regulations) and 229.10 (Penalties), since a 
delay would be contrary to the public interest because the agency would 
be unable to respond to emergency situations involving alarming numbers 
of takes of marine mammals and would be unable to assess penalties 
against persons who violate the provisions of the MMPA. Sections 229.11 
(Confidential fisheries data) and 229.12 (Consultation with the 
Secretary of the Interior) repeat statutory text and state agency 
policy; a delay in their effective date is unnecessary because it would 
serve no useful purpose. Section 229.20 (Issuance of permits) 
authorizing the take of endangered or threatened marine mammals is 
procedural and, to the effect it is substantive, is related to 
relieving a restriction by providing a mechanism for authorizing takes 
of endangered or threatened marine mammals incidental to commercial 
fishing operations, which would otherwise be prohibited.

National Environmental Policy Act

    The Assistant Administrator for Fisheries, NOAA has determined, 
based upon an EA prepared in conjunction with the proposed rule under 
the National Environmental Policy Act, that implementation of these 
regulations would not have a significant impact on the human 
environment. As a result of this determination, an environmental impact 
statement is not required. A copy of the EA is available upon request 
(see ADDRESSES).

List of Subjects

    50 CFR Part 216
    Administrative practice and procedure, Imports, Indians, Marine 
Mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation
    50 CFR Part 229
    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: August 24, 1994.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set out in the preamble, 50 CFR parts 216 and 229 are 
amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    2. Section 216.24 is amended by removing the phrase, under the Note 
to Sec. 216.24: ``for the period from June 17, 1994, through September 
1, 1995''.
    3. Part 229 is revised to read as follows:

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

Subpart A--General Provisions

Sec.
229.1  Purpose and scope.
229.2  Definitions.
229.3  Prohibitions.
229.4  Requirements for Category I and II fisheries.
229.5  Requirements for Category III fisheries.
229.6  Reporting requirements.
229.7  Monitoring of incidental mortalities and serious injuries.
229.8  Publication of List of Fisheries.
229.9  Emergency regulations.
229.10  Penalties.
229.11  Confidential fisheries data.
229.12  Consultation with the Secretary of the Interior.

Subpart B--Takes of Endangered and Threatened Marine Mammals

229.20  Issuance of permits.

Subpart C--Take Reduction Plan Regulations and Emergency Regulations 
[Reserved]


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

Subpart A--General Provisions


Sec. 229.1  Purpose and scope.

    (a) The regulations in this part implement sections 101(a)(5)(E) 
and 118 of the Marine Mammal Protection Act of 1972, as amended (16 
U.S.C. 1371(a)(5)(E) and 1387) that provide for exceptions for the 
taking of marine mammals incidental to certain commercial fishing 
operations from the Act's general moratorium on the taking of marine 
mammals.
    (b) Section 118 of the Act, rather than sections 103 and 104, 
governs the 

[[Page 45101]]
incidental taking of marine mammals in the course of commercial fishing 
operations by persons using vessels of the United States, other than 
vessels fishing for yellowfin tuna in the eastern tropical Pacific 
Ocean purse seine fishery, and vessels that have valid fishing permits 
issued in accordance with section 204(b) of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1824(b)).
    (c) The regulations of Subpart B also govern the incidental taking 
by commercial fishers of marine mammals from species or stocks 
designated under the Act as depleted on the basis of their listing as 
threatened species or endangered species under the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.).
    (d) The regulations of this part do not apply to the incidental 
taking of California sea otters or to Northwest treaty Indian tribal 
members exercising treaty fishing rights.
    (e) Authorizations under subpart A of this part are exemptions only 
from the taking prohibitions under the Act and not those under the 
Endangered Species Act of 1973. To be exempt from the taking 
prohibitions under the Endangered Species Act, specific authorization 
under subpart B of this part is required.
    (f) Authorizations under this part do not apply to the intentional 
lethal taking of marine mammals in the course of commercial fishing 
operations.
    (g) The purposes of the regulations in this part are to: (1) Reduce 
the incidental mortality or serious injury of marine mammals occurring 
in the course of commercial fishing operations below the potential 
biological removal level for a particular stock, and
    (2) Reduce the incidental mortality or serious injury of marine 
mammals occurring in the course of commercial fishing operations to 
insignificant levels approaching a zero mortality and serious injury 
rate by the statutory deadline of April 30, 2001.


Sec. 229.2  Definitions.

    In addition to the definitions contained in the Act and Sec. 216.3 
of this chapter, and unless the context otherwise requires, in this 
part 229:
    Act or MMPA means the Marine Mammal Protection Act of 1972, as 
amended (16 U.S.C. 1361 et seq.).
    Authorization Certificate means a document issued by the Assistant 
Administrator, or designee, under the authority of section 118 of the 
Act that authorizes the incidental, but not intentional, taking of 
marine mammals in Category I or II fisheries.
    Category I fishery means a commercial fishery determined by the 
Assistant Administrator to have frequent incidental mortality and 
serious injury of marine mammals. A commercial fishery that frequently 
causes mortality or serious injury of marine mammals is one that is by 
itself responsible for the annual removal of 50 percent or more of any 
stock's potential biological removal level.
    Category II fishery means a commercial fishery determined by the 
Assistant Administrator to have occasional incidental mortality and 
serious injury of marine mammals. A commercial fishery that 
occasionally causes mortality or serious injury of marine mammals is 
one that, collectively with other fisheries, is responsible for the 
annual removal of more than 10 percent of any marine mammal stock's 
potential biological removal level and that is by itself responsible 
for the annual removal of between 1 and 50 percent, exclusive, of any 
stock's potential biological removal level. In the absence of reliable 
information indicating the frequency of incidental mortality and 
serious injury of marine mammals by a commercial fishery, the Assistant 
Administrator will determine whether the taking is ``occasional'' by 
evaluating other factors such as fishing techniques, gear used, methods 
used to deter marine mammals, target species, seasons and areas fished, 
qualitative data from logbooks or fisher reports, stranding data, and 
the species and distribution of marine mammals in the area, or at the 
discretion of the Assistant Administrator. Eligible commercial 
fisheries not specifically identified in the list of fisheries are 
deemed to be Category II fisheries until the next list of fisheries is 
published.
    Category III fishery means a commercial fishery determined by the 
Assistant Administrator to have a remote likelihood of, or no known 
incidental mortality and serious injury of marine mammals. A commercial 
fishery that has a remote likelihood of causing incidental mortality 
and serious injury of marine mammals is one that collectively with 
other fisheries is responsible for the annual removal of:
    (1) Ten percent or less of any marine mammal stock's potential 
biological removal level, or
    (2) More than 10 percent of any marine mammal stock's potential 
biological removal level, yet that fishery by itself is responsible for 
the annual removal of 1 percent or less of that stock's potential 
biological removal level. In the absence of reliable information 
indicating the frequency of incidental mortality and serious injury of 
marine mammals by a commercial fishery, the Assistant Administrator 
will determine whether the taking is ``remote'' by evaluating other 
factors such as fishing techniques, gear used, methods used to deter 
marine mammals, target species, seasons and areas fished, qualitative 
data from logbooks or fisher reports, stranding data, and the species 
and distribution of marine mammals in the area or at the discretion of 
the Administrator.
    Commercial fishing operation means the catching, taking, or 
harvesting of fish from the marine environment (or other areas where 
marine mammals occur) that results in the sale or barter of all or part 
of the fish harvested. The term includes licensed commercial passenger 
fishing vessel (as defined in Sec. 216.3 of this chapter) activities 
and aquaculture activities.
    Depleted species means any species or population that has been 
designated as depleted under the Act and is listed in Sec. 216.15 of 
this chapter or part 18, subpart E of this title, or any endangered or 
threatened species of marine mammal.
    Fisher means the vessel owner or operator or owner or operator of 
gear in a nonvessel fishery.
    Fishery has the same meaning as in section 3 of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1802).
    Fishing trip means any time spent away from port actively engaged 
in commercial fishing operations. The end of a fishing trip will be the 
time of a fishing vessel's return to port or the return of a fisher 
from tending gear in a nonvessel fishery.
    Fishing vessel or vessel means any vessel, boat, ship, or other 
craft that is used for, equipped to be used for, or of a type normally 
used for, fishing.
    Incidental, but not intentional, take means the non-intentional or 
accidental taking of a marine mammal that results from, but is not the 
purpose of, carrying out an otherwise lawful action.
    Incidental mortality means the non-intentional or accidental death 
of a marine mammal that results from, but is not the purpose of, 
carrying out an otherwise lawful action.
    Injury means a wound or other physical harm. Signs of injury to a 
marine mammal include, but are not limited to, visible blood flow, loss 
of or damage to an appendage or jaw, inability to use one or more 
appendages, asymmetry in the shape of the body or body position, 
noticeable swelling or hemorrhage, laceration, puncture or rupture of 
eyeball, listless appearance or inability to defend itself, inability 
to swim or dive upon release from fishing 

[[Page 45102]]
gear, or signs of equilibrium imbalance. Any animal that ingests 
fishing gear, or any animal that is released with fishing gear 
entangling, trailing or perforating any part of the body will be 
considered injured regardless of the absence of any wound or other 
evidence of an injury.
    Interaction means coming in contact with fishing gear or catch. An 
interaction may be characterized by a marine mammal entangled, hooked, 
or otherwise trapped in fishing gear, regardless of whether injury or 
mortality occurs, or situations where marine mammals are preying on 
catch. Catch means fish or shellfish that has been hooked, entangled, 
snagged, trapped or otherwise captured by commercial fishing gear.
    List of Fisheries means the most recent final list of commercial 
fisheries published in the Federal Register by the Assistant 
Administrator, categorized according to the likelihood of incidental 
mortality and serious injury of marine mammals during commercial 
fishing operations.
    Minimum population estimate means an estimate of the number of 
animals in a stock that:
    (1) Is based on the best available scientific information on 
abundance, incorporating the precision and variability associated with 
such information; and
    (2) Provides reasonable assurance that the stock size is equal to 
or greater than the estimate.
    Negligible impact has the same meaning as in Sec. 228.3 of this 
chapter.
    Net productivity rate means the annual per capita rate of increase 
in a stock resulting from additions due to reproduction, less losses 
due to mortality.
    Nonvessel fishery means a commercial fishing operation that uses 
fixed or other gear without a vessel, such as gear used in set gillnet, 
trap, beach seine, weir, ranch, and pen fisheries.
    NMFS means the National Marine Fisheries Service.
    Observer means an individual authorized by NMFS, or a designated 
contractor, to record information on marine mammal interactions, 
fishing operations, marine mammal life history information, and other 
scientific data, and collect biological specimens during commercial 
fishing activities.
    Potential biological removal level means 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. The potential biological removal level 
is the product of the following factors:
    (1) The minimum population estimate of the stock;
    (2) One-half the maximum theoretical or estimated net productivity 
rate of the stock at a small population size; and
    (3) A recovery factor of between 0.1 and 1.0.
    Regional Fishery Management Council means a regional fishery 
management council established under section 302 of the Magnuson 
Fishery Conservation and Management Act.
    Serious injury means any injury that will likely result in 
mortality.
    Strategic stock means a marine mammal stock:
    (1) For which the level of direct human-caused mortality exceeds 
the potential biological removal level;
    (2) Which, based on the best available scientific information, is 
declining and is likely to be listed as a threatened species under the 
Endangered Species Act of 1973 within the foreseeable future;
    (3) Which is listed as a threatened species or endangered species 
under the Endangered Species Act of 1973; or
    (4) Which is designated as depleted under the Marine Mammal 
Protection Act of 1972, as amended.
    Take Reduction Plan means a plan developed to reduce the incidental 
mortality and serious injury of marine mammals during commercial 
fishing operations in accordance with section 118 of the Marine Mammal 
Protection Act of 1972, as amended.
    Take Reduction Team means a team established to recommend methods 
of reducing the incidental mortality and serious injury of marine 
mammals due to commercial fishing operations, in accordance with 
section 118 of the Marine Mammal Protection Act of 1972, as amended.
    Vessel owner or operator means the owner or operator of:
    (1) A fishing vessel that engages in a commercial fishing 
operation; or
    (2) Fixed or other commercial fishing gear that is used in a 
nonvessel fishery.
    Vessel of the United States has the same meaning as in section 3 of 
the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).


Sec. 229.3  Prohibitions.

    (a) It is prohibited to take any marine mammal incidental to 
commercial fishing operations except as otherwise provided in part 216 
of this chapter or in this part 229.
    (b) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with an observer, or attempt the same. This prohibition 
includes, but is not limited to, any action that interferes with an 
observer's responsibilities, or that creates an intimidating, hostile, 
or offensive environment.
    (c) It is prohibited to provide false information when registering 
for an Authorization Certificate, applying for renewal of the 
Authorization Certificate, reporting the taking of any marine mammal, 
or providing information to any observer.
    (d) It is prohibited to tamper with or destroy observer equipment 
in any way.
    (e) It is prohibited to intentionally lethally take any marine 
mammal in the course of commercial fishing operations unless imminently 
necessary in self-defense or to save the life of a person in immediate 
danger, and such taking is reported in accordance with the requirements 
of Sec. 229.6.
    (f) It is prohibited to violate any regulation in this part or any 
provision of section 118 of the Act.


Sec. 229.4  Requirements for Category I and II fisheries.

    (a) General. For a vessel owner or crew members to lawfully 
incidentally take marine mammals in the course of commercial fishing 
operations in a Category I or II fishery, the owner or authorized 
representative of a fishing vessel or nonvessel fishing gear must 
annually register for and receive an Authorization Certificate. The 
granting and administration of authorizations under this part shall be 
integrated and coordinated with existing fishery license, registration, 
or permit systems and related programs, wherever possible. These 
programs may include, but are not limited to, state or 
interjurisdictional fisheries programs. If the administration of 
authorizations is integrated into an existing program, NMFS will 
publish a notice in the Federal Register of where to register, and 
efforts will be made to contact affected fishers via other appropriate 
means of notification.
    (b) Registration. Owners of vessels or, for nonvessel fisheries, 
gear, must register for and receive an Authorization Certificate. To 
register, owners must submit the following information, using a format 
specified by NMFS:
    (1) Name, address, and phone number of owner;
    (2) Name, address, and phone number of operator, if different from 
owner, unless the name of the operator is not known or has not been 
established at the time the registration is submitted;
    (3) Vessel name, length and home port; U.S. Coast Guard 
documentation number, or state registration number, 

[[Page 45103]]
and state commercial vessel license number;
    (4) A list of all Category I and II fisheries in which the fisher 
may actively engage during the calendar year;
    (5) The approximate time, duration, and location of each such 
fishery operation, and the general type and nature of use of the 
fishing gear and techniques used; and
    (6) A certification, signed and dated by the vessel owner or 
authorized representative, as follows: ``I hereby certify that I am the 
owner of the vessel, that I have reviewed all information contained on 
this document, and that it is true and complete to the best of my 
knowledge.''
    (c) Fee. A check or money order made payable to NMFS in the amount 
specified in the notice of the final List of Fisheries must accompany 
each registration submitted to NMFS. The amount of this fee will be 
based on recovering the administrative costs incurred in granting an 
authorization. The Assistant Administrator may waive the fee 
requirement for good cause upon the recommendation of the Regional 
Director.
    (d) Address. Unless the granting and administration of 
authorizations under part 229 is integrated and coordinated with 
existing fishery licenses, registrations, or related programs pursuant 
to paragraph (a) of this section, requests for registration forms and 
completed registration forms should be sent to the NMFS Regional 
Offices are given:
    (1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street, 
Juneau, AK 99802; telephone: [phone];
    (2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 
98115-0070; telephone: [phone];
    (3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long 
Beach, CA 90802-4213; telephone: [phone];
    (4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 
01930; telephone: [phone]; or
    (5) Southeast Region, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702; telephone: [phone].
    (e) Issuance. After receipt of a completed initial registration 
form and the required fee, NMFS will issue an Authorization Certificate 
and annual decal to the vessel owner. The Authorization Certificate 
will be renewed annually, and an annual decal issued, after receipt of 
an updated registration form, required fee, and statement (yes/no) 
regarding whether any marine mammals were incidentally killed or 
injured during the previous calendar year. The Authorization 
Certificate will be renewed only if the fisher has complied with the 
provisions of Secs. 229.4, 229.6, and 229.7.
    (f) Authorization Certificate and decal requirements. (1) The 
annual decal must be attached to the vessel on the port side of the 
cabin or, in the absence of a cabin, on the forward port side of the 
hull, and must be free of obstruction and in good condition. The decal 
must be attached to the Authorization Certificate for nonvessel 
fisheries.
    (2) The Authorization Certificate, or a copy, must be on board the 
vessel while it is operating in a Category I or II fishery, or, in the 
case of nonvessel fisheries, the Authorization Certificate with decal 
attached, or copy must be in the possession of the person in charge of 
the fishing operation. The Authorization Certificate, or copy, must be 
made available upon request to any state or Federal enforcement agent 
authorized to enforce the Act, any designated agent of NMFS, or any 
contractor providing observer services to NMFS.
    (3) Authorization Certificates and annual decals are not 
transferable. In the event of the sale or change in ownership of the 
vessel, the Authorization Certificate is void and the new owner must 
register for an Authorization Certificate and decal.
    (4) An Authorization Certificate holder must notify the issuing 
office in writing:
    (i) If the vessel or nonvessel fishing gear will engage in any 
Category I or II fishery not listed on the initial registration form at 
least 30 days prior to engaging in that fishery; and,
    (ii) If there are any changes in the mailing address or vessel 
ownership within 30 days of such change.
    (g) Reporting. Any Authorization Certificate holders must comply 
with the reporting requirements specified under Sec. 229.6.
    (h) Disposition of marine mammals. Any marine mammal incidentally 
taken must be immediately returned to the sea with a minimum of further 
injury, unless directed otherwise by NMFS personnel, a designated 
contractor or an official onboard observer, or authorized otherwise by 
a scientific research permit that is in the possession of the operator.
    (i) Monitoring. Authorization Certificate holders must comply with 
the observer or other monitoring requirements specified under 
Sec. 229.7.
    (j) Deterrence. When necessary to deter a marine mammal from 
damaging fishing gear, catch, or other private property, or from 
endangering personal safety, vessel owners and crew members engaged in 
a Category I or II fishery must comply with all deterrence provisions 
set forth in the Act and all guidelines and prohibitions published 
thereunder.
    (k) Self defense. When imminently necessary in self-defense or to 
save the life of a person in immediate danger, a marine mammal may be 
lethally taken if such taking is reported to NMFS in accordance with 
the requirements of Sec. 229.6.
    (l) Take reduction plans and emergency regulations. Authorization 
Certificate holders must comply with any applicable take reduction 
plans and emergency regulations.
    (m) Expiration. Authorization Certificates and annual decals expire 
at the end of each calendar year.


Sec. 229.5  Requirements for Category III fisheries.

    (a) General. Vessel owners and crew members of such vessels engaged 
only in Category III fisheries may incidentally take marine mammals 
without registering for or receiving an Authorization Certificate.
    (b) Reporting. Vessel owners engaged in a Category III fishery must 
comply with the reporting requirements specified in Sec. 229.6.
    (c) Disposition of marine mammals. Any marine mammal incidentally 
taken must be immediately returned to the sea with a minimum of further 
injury unless directed otherwise by NMFS personnel, a designated 
contractor, or an official onboard observer, or authorized otherwise by 
a scientific research permit in the possession of the operator.
    (d) Monitoring. Vessel owners engaged in a Category III fishery 
must comply with the observer requirements specified under 
Sec. 229.7(f).
    (e) Deterrence. When necessary to deter a marine mammal from 
damaging fishing gear, catch, or other private property, or from 
endangering personal safety, vessel owners and crew members engaged in 
a Category I or II fishery must comply with all deterrence provisions 
set forth in the Act and all guidelines and prohibitions published 
thereunder.
    (f) Self-defense. When imminently necessary in self-defense or to 
save the life of a person in immediate danger, a marine mammal may be 
lethally taken if such taking is reported to NMFS in accordance with 
the requirements of Sec. 229.6.
    (g) Emergency regulations. Vessel owners engaged in a Category III 
fishery must comply with any applicable emergency regulations.

[[Page 45104]]



Sec. 229.6  Reporting requirements.

    (a) Vessel owners or operators engaged in any Category I, II, or 
III fishery must report all incidental mortality and injury of marine 
mammals in the course of commercial fishing operations to the Assistant 
Administrator, or appropriate Regional Office, by mail or other means, 
such as fax or overnight mail specified by the Assistant Administrator. 
Reports must be sent within 48 hours after the end of each fishing trip 
during which the incidental mortality or injury occurred, or, for 
nonvessel fisheries, within 48 hours of an occurrence of an incidental 
mortality or injury. Reports must be submitted on a standard postage-
paid form as provided by the Assistant Administrator. The vessel owner 
or operator must provide the following information on this form:
    (1) The vessel name, and Federal, state, or tribal registration 
numbers of the registered vessel;
    (2) The name and address of the vessel owner or operator;
    (3) The name and description of the fishery, including gear type 
and target species; and
    (4) The species and number of each marine mammal incidentally 
killed or injured, and the date, time, and approximate geographic 
location of such occurrence. A description of the animal(s) killed or 
injured must be provided if the species is unknown.
    (b) Participants in nonvessel fisheries must provide all of the 
information in paragraphs (a)(1) through (4) of this section with the 
exception of the vessel name and registration number.


Sec. 229.7  Monitoring of incidental mortalities and serious injuries.

    (a) Purpose. The Assistant Administrator will establish a program 
to monitor incidental mortality and serious injury of marine mammals 
during the course of commercial fishing operations in order to:
    (1) Obtain statistically reliable estimates of incidental mortality 
and serious injury;
    (2) Determine the reliability of reports of incidental mortality 
and injury under Sec. 229.6; and
    (3) Identify changes in fishing methods or technology that may 
increase or decrease incidental mortality and serious injury.
    (b) Observer program. Pursuant to paragraph (a) of this section, 
the Assistant Administrator may place observers aboard Category I and 
II vessels as necessary. Observers may, among other tasks:
    (1) Record incidental mortality and injury, and bycatch of other 
nontarget species;
    (2) Record numbers of marine mammals sighted; and
    (3) Perform other scientific investigations, which may include, but 
are not limited to, sampling and photographing incidental mortalities 
and serious injuries.
    (c) Observer requirements for Authorization Certificate holders. 
(1) If requested by NMFS or a designated contractor providing observer 
services to NMFS, an Authorization Certificate holder engaged in a 
Category I or II fishery must take aboard an observer to accompany the 
vessel on fishing trips.
    (2) After being notified by NMFS, or by a designated contractor 
providing observer services to NMFS, that the vessel is required to 
carry an observer, the Authorization Certificate holder must comply 
with the notification by providing information requested within the 
specified time on scheduled or anticipated fishing trips.
    (3) NMFS, or a designated contractor providing observer services to 
NMFS, may waive the observer requirement based on a finding that the 
facilities for housing the observer or for carrying out observer 
functions are so inadequate or unsafe that the health or safety of the 
observer or the safe operation of the vessel would be jeopardized.
    (4) The Authorization Certificate holder and crew must cooperate 
with the observer in the performance of the observer's duties 
including:
    (i) Providing adequate accommodations;
    (ii) Allowing for the embarking and debarking of the observer as 
specified by NMFS personnel or designated contractors. The operator of 
a vessel must ensure that transfers of observers at sea are 
accomplished in a safe manner, via small boat or raft, during daylight 
hours if feasible, as weather and sea conditions allow, and with the 
agreement of the observer involved;
    (iii) Allowing the observer access to all areas of the vessel 
necessary to conduct observer duties;
    (iv) Allowing the observer access to communications equipment and 
navigation equipment, when available on the vessel, as necessary to 
perform observer duties;
    (v) Providing true vessel locations by latitude and longitude, 
accurate to the minute, or by loran coordinates, upon request by the 
observer;
    (vi) Sampling marine mammal or other protected species specimens, 
upon request by NMFS personnel;
    (vii) Sampling, retaining and storing mammal or other protected 
species specimens, upon request by NMFS personnel, designated 
contractors, or the observer aboard, if adequate facilities are 
available and if feasible;
    (viii) Notifying the observer in a timely fashion of when all 
commercial fishing operations are to begin and end;
    (ix) Not impairing or in any way interfering with the research or 
observations being carried out; and
    (x) Complying with other guidelines or regulations that NMFS may 
develop to ensure the effective deployment and use of observers.
    (5) Marine mammals incidentally killed during fishing operations 
and which are readily accessible to crew members, must be brought 
onboard the vessel as biological specimens and retained for the 
purposes of scientific research if feasible and requested by NMFS 
personnel, designated contractors, or the aboard observer. Marine 
mammals so collected and retained as biological specimens must, upon 
request by NMFS personnel, designated contractors, or the observer 
aboard, be retained in cold storage on board the vessel, if feasible, 
until removed at the request of NMFS personnel, designated contractors, 
or the observer aboard, retrieved by authorized personnel of NMFS, or 
released by the observer for return to the ocean. Such biological 
specimens may be transported on board the vessel during the fishing 
trip and back to port under this authorization.
    (6) Any marine mammal incidentally taken may be retained only if 
authorized by NMFS personnel, designated contractors or an official 
observer aboard, or by a scientific research permit that is in the 
possession of the operator.
    (d) Observer requirements for Category III fisheries. (1) The 
Assistant Administrator may place observers on Category III vessels if 
the Assistant Administrator:
    (i) Believes that the incidental mortality and serious injury of 
marine mammals from such fishery may be contributing to the immediate 
and significant adverse impact on a species or stock listed as a 
threatened species or endangered species under the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.); and
    (ii) Has complied with Sec. 229.9(a)(3)(i) and (ii); or
    (iii) Has the consent of the vessel owner.
    (2) If an observer is placed on a Category III vessel, the vessel 
owner and/or operator must comply with the requirements of 
Sec. 229.7(c).
    (e) Alternative observer program. The Assistant Administrator may 
establish 

[[Page 45105]]
an alternative observer program to provide statistically reliable 
information on the species and number of marine mammals incidentally 
taken in the course of commercial fishing operations. The alternative 
observer program may include direct observation of fishing activities 
from vessels, airplanes, or points on shore.


Sec. 229.8  Publication of List of Fisheries.

    (a) The Assistant Administrator will publish in the Federal 
Register a proposed revised List of Fisheries on or about July 1 of 
each year for the purpose of receiving public comment. Each year, on or 
about October 1, the Assistant Administrator will publish a final 
revised List of Fisheries, which will become effective January 1 of the 
next calendar year.
    (b) The proposed and final revised List of Fisheries will:
    (1) Categorize each commercial fishery based on the definitions of 
Category I, II, and III fisheries set forth in Sec. 229.2; and
    (2) List the marine mammals that interact with commercial fishing 
operations and the estimated number of vessels or persons involved in 
each commercial fishery.
    (c) The Assistant Administrator may publish a revised List of 
Fisheries at other times, after notification and opportunity for public 
comment. The revised final List of Fisheries will become effective no 
sooner than 30 days after publication in the Federal Register.


Sec. 229.9  Emergency regulations.

    (a) If the Assistant Administrator finds that the incidental 
mortality or serious injury of marine mammals from commercial fisheries 
is having, or is likely to have, an immediate and significant adverse 
impact on a stock or species, the Assistant Administrator will:
    (1) In the case of a stock or species for which a take reduction 
plan is in effect--
    (i) Prescribe emergency regulations that, consistent with such plan 
to the maximum extent practicable, reduce incidental mortality and 
serious injury in that fishery; and
    (ii) Approve and implement on an expedited basis, any amendments to 
such plan that are recommended by the Take Reduction Team to address 
such adverse impact;
    (2) In the case of a stock or species for which a take reduction 
plan is being developed--
    (i) Prescribe emergency regulations to reduce such incidental 
mortality and serious injury in that fishery; and
    (ii) Approve and implement, on an expedited basis, such plan, which 
will provide methods to address such adverse impact if still necessary;
    (3) In the case of a stock or species for which a take reduction 
plan does not exist and is not being developed, or in the case of a 
Category III fishery that the Assistant Administrator believes may be 
contributing to such adverse impact,
    (i) Prescribe emergency regulations to reduce such incidental 
mortality and serious injury in that fishery, to the extent necessary 
to mitigate such adverse impact;
    (ii) Immediately review the stock assessment for such stock or 
species and the classification of such commercial fishery under this 
section to determine if a take reduction team should be established; 
and
    (iii) Where necessary to address such adverse impact on a species 
or stock listed as a threatened species or endangered species under the 
Endangered Species Act (16 U.S.C. 1531 et seq.), place observers on 
vessels in a Category III fishery if the Assistant Administrator has 
reason to believe such vessels may be causing the incidental mortality 
and serious injury to marine mammals from such stock.
    (b) Prior to taking any action under Sec. 229.9(a)(1) through (3), 
the Assistant Administrator will consult with the Marine Mammal 
Commission, all appropriate Regional Fishery Management Councils, state 
fishery managers, and the appropriate take reduction team, if 
established.
    (c) Any emergency regulations issued under this section:
    (1) Shall be published in the Federal Register and will remain in 
effect for no more than 180 days or until the end of the applicable 
commercial fishing season, whichever is earlier, except as provided in 
paragraph (d) of this section; and
    (2) May be terminated by notification in the Federal Register at an 
earlier date if the Assistant Administrator determines that the reasons 
for the emergency regulations no longer exist.
    (d) If the Assistant Administrator finds that incidental mortality 
and serious injury of marine mammals in a commercial fishery is 
continuing to have an immediate and significant adverse impact on a 
stock or species, the Assistant Administrator may extend the emergency 
regulations for an additional period of not more than 90 days or until 
reasons for the emergency regulations no longer exist, whichever is 
earlier.


Sec. 229.10  Penalties.

    (a) Except as provided for in paragraphs (b) and (c) of this 
section, any person who violates any regulation under this part or any 
provision of section 118 of the MMPA shall be subject to all penalties 
set forth in the Act.
    (b) The owner or master of a vessel that fails to comply with a 
take reduction plan shall be subject to the penalties of sections 105 
and 107 of the Act, and may be subject to the penalties of section 106 
of the Act.
    (c) The owner of a vessel engaged in a Category I or II fishery who 
fails to ensure that a decal, or other physical evidence of such 
authorization issued by NMFS, is displayed on the vessel or is in 
possession of the operator of the vessel shall be subject to a penalty 
of not more than $100.
    (d) Failure to comply with take reduction plans or emergency 
regulations issued under this part may result in suspension or 
revocation of an Authorization Certificate, and failure to comply with 
a take reduction plan is also subject to the penalties of sections 105 
and 107 of the Act, and may be subject to the penalties of section 106 
of the Act.
    (e) For fishers operating in Category I or II fisheries, failure to 
report all incidental injuries and mortalities within 48 hours of the 
end of each fishing trip, or failure to comply with requirements to 
carry an observer, will subject such persons to the penalties of 
sections 105 and 107 and may subject them to the penalties of section 
106 of the Act, which will result in suspension, revocation, or denial 
of an Authorization Certificate until such requirements have been 
fulfilled.
    (f) For fishers operating in Category III fisheries, failure to 
report all incidental injuries and mortalities within 48 hours of the 
end of each fishing trip will subject such persons to the penalties of 
sections 105 and 107, and may subject them to section 106, of the Act.
    (g) Suspension, revocation or denial of Authorization Certificates. 
(1) Until the Authorization Certificate holder complies with the 
regulations under this part, the Assistant Administrator shall suspend 
or revoke an Authorization Certificate or deny an annual renewal of an 
Authorization Certificate in accordance with the provisions in 15 CFR 
part 904 if the Authorization Certificate holder fails to report all 
incidental mortality and serious injury of marine mammals as required 
under Sec. 229.6; or fails to take aboard an observer if requested by 
NMFS or its designated contractors.
    (2) The Assistant Administrator may suspend or revoke an 
Authorization Certificate or deny an annual renewal of an Authorization 
Certificate in 

[[Page 45106]]
accordance with the provisions in 15 CFR part 904 if the Authorization 
Certificate holder fails to comply with any applicable take reduction 
plan, take reduction regulations, or emergency regulations developed 
under this subpart or subparts B and C of this part or if the 
Authorization Certificate holder fails to comply with other 
requirements of these regulations;
    (3) A suspended Authorization Certificate may be reinstated at any 
time at the discretion of the Assistant Administrator provided the 
Assistant Administrator has determined that the reasons for the 
suspension no longer apply or corrective actions have been taken.


Sec. 229.11  Confidential fisheries data.

    (a) Proprietary information collected under this part is 
confidential and includes information, the unauthorized disclosure of 
which could be prejudicial or harmful, such as information or data that 
are identifiable with an individual fisher. Proprietary information 
obtained under part 229 will not be disclosed, in accordance with NOAA 
Administrative Order 216-100, except:
    (1) To Federal employees whose duties require access to such 
information;
    (2) To state employees under an agreement with NMFS that prevents 
public disclosure of the identity or business of any person;
    (3) When required by court order; or
    (4) In the case of scientific information involving fisheries, to 
employees of Regional Fishery Management Councils who are responsible 
for fishery management plan development and monitoring.
    (5) To other individuals or organizations authorized by the 
Assistant Administrator to analyze this information, so long as the 
confidentiality of individual fishers is not revealed.
    (b) Information will be made available to the public in aggregate, 
summary, or other such form that does not disclose the identity or 
business of any person in accordance with NOAA Administrative Order 
216-100 (see ADDRESSES). Aggregate or summary form means data 
structured so that the identity of the submitter cannot be determined 
either from the present release of the data or in combination with 
other releases.


Sec. 229.12  Consultation with the Secretary of the Interior.

    The Assistant Administrator will consult with the Secretary of the 
Interior prior to taking actions or making determinations under this 
part that affect or relate to species or population stocks of marine 
mammals for which the Secretary of the Interior is responsible under 
the Act.

Subpart B--Takes of Endangered and Threatened Marine Mammals


Sec. 229.20  Issuance of permits.

    (a) Determinations. During a period of up to 3 consecutive years, 
NMFS will allow the incidental, but not the intentional, taking by 
persons using vessels of the United States or foreign vessels that have 
valid fishing permits issued by the Assistant Administrator in 
accordance with section 204(b) of the Magnuson Fishery Conservation and 
Management Act (16 U.S.C. 1824(b)), while engaging in commercial 
fishing operations, of marine mammals from a species or stock 
designated as depleted because of its listing as an endangered species 
or threatened species under the Endangered Species Act of 1973 if the 
Assistant Administrator determines that:
    (1) The incidental mortality and serious injury from commercial 
fisheries will have a negligible impact on such species or stock;
    (2) A recovery plan has been developed or is being developed for 
such species or stock pursuant to the Endangered Species Act of 1973; 
and
    (3) Where required under regulations in subpart A of this part:
    (i) A monitoring program has been established under Sec. 229.7; 
(ii) Vessels engaged in such fisheries are registered in accordance 
with Sec. 229.4; and
    (iii) A take reduction plan has been developed or is being 
developed for such species or stock in accordance with regulations at 
subpart C of this part.
    (b) Procedures for making determinations. In making any of the 
determinations listed in paragraph (a) of this section, the Assistant 
Administrator will publish an announcement in the Federal Register of 
fisheries having takes of marine mammals listed under the Endangered 
Species Act, including a summary of available information regarding the 
fisheries interactions with listed species. Any interested party may, 
within 45 days of such publication, submit to the Assistant 
Administrator written data or views with respect to the listed 
fisheries. As soon as practicable after the end of the 45 days 
following publication, NMFS will publish in the Federal Register a list 
of the fisheries for which the determinations listed in paragraph (a) 
of this section have been made. This publication will set forth a 
summary of the information used to make the determinations.
    (c) Issuance of authorization. The Assistant Administrator will 
issue appropriate permits for vessels in fisheries that are required to 
register under Sec. 229.4 and for which determinations under the 
procedures of paragraph (b) of this section can be made.
    (d) Category III fisheries. Vessel owners engaged only in Category 
III fisheries for which determinations are made under the procedures of 
paragraph (b) of this section will not be subject to the penalties of 
this Act for the incidental taking of marine mammals to which this 
subpart applies, as long as the vessel owner or operator of such vessel 
reports any incidental mortality or injury of such marine mammals in 
accordance with the requirements of Sec. 229.6.
    (e) Emergency authority. During the course of the commercial 
fishing season, if the Assistant Administrator determines that the 
level of incidental mortality or serious injury from commercial 
fisheries for which such a determination was made under this section 
has resulted or is likely to result in an impact that is more than 
negligible on the endangered or threatened species or stock, the 
Assistant Administrator will use the emergency authority of Sec. 229.9 
to protect such species or stock, and may modify any permit granted 
under this paragraph as necessary.
    (f) Suspension, revocation, modification and amendment. The 
Assistant Administrator may, pursuant to the provisions of 15 CFR part 
904, suspend or revoke a permit granted under this section if the 
Assistant Administrator determines that the conditions or limitations 
set forth in such permit are not being complied with. The Assistant 
Administrator may amend or modify, after notification and opportunity 
for public comment, the list of fisheries published in accordance with 
Sec. 229.21(b) whenever the Assistant Administrator determines there 
has been a significant change in the information or conditions used to 
determine such a list.
    (g) Southern sea otters. This subpart does not apply to the taking 
of Southern (California) sea otters.

Subpart C--Take Reduction Plan Regulations and Emergency 
Regulations [Reserved]

[FR Doc. 95-21552 Filed 8-25-95; 2:46 pm]
BILLING CODE 3510-22-F