[Federal Register Volume 59, Number 196 (Wednesday, October 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25150]
[[Page Unknown]]
[Federal Register: October 12, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 940971-4271; I.D. 082594C] RIN 0648-AH04
Taking and Importing of Marine Mammals
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: NMFS issues this proposed rule to clarify that the provisions
of the Marine Mammal Protection Act (MMPA) that make it unlawful for
any person or vessel subject to the jurisdiction of the United States,
intentionally to set a purse seine net on or to encircle any marine
mammal during any tuna fishing operation, apply to all U.S. citizens
regardless of the flag of the vessel. This rule also clarifies the
geographic scope of the prohibition. This action is intended to clarify
statutory language to further the goals and objectives of the MMPA.
DATES: Comments must be submitted on or before November 14, 1994.
ADDRESSES: All comments concerning this proposed rule should be
addressed to the Director, Southwest Region, NMFS, 501 W. Ocean Blvd.,
Suite 4200, Long Beach, CA 90802, 310-980-4001.
FOR FURTHER INFORMATION CONTACT: Lt. Dana Wilkes, 310-980-4019.
SUPPLEMENTARY INFORMATION: In 1992, the International Dolphin
Conservation Act (IDCA) amended the MMPA in several respects, including
making it unlawful, after February 28, 1994, for any person or vessel
that is subject to the jurisdiction of the United States, intentionally
to set a purse seine net on or to encircle any marine mammal during any
tuna fishing operation. The IDCA provides two relevant exceptions to
these prohibitions: (1) As necessary for scientific research; and (2)
as authorized by the general permit that was issued to the American
Tunaboat Association on December 1, 1980.
The taking of marine mammals by U.S. purse seine vessels fishing
for yellowfin tuna in the eastern tropical Pacific Ocean (ETP) is
regulated by NMFS, pursuant to the MMPA, because purse seine fishing
for yellowfin tuna in the ETP has frequently involved the setting on,
encircling, and capturing of dolphins as part of the fishing operation.
Earlier this year, NMFS determined that the dolphin mortality quota
prescribed under the MMPA for vessels under the American Tunaboat
Association general permit (which covers only U.S.-flag vessels) had
been reached and, on February 8, 1994, closed the tuna fishery in the
ETP involving the intentional setting on or encirclement of marine
mammals to U.S.-flag vessels (59 FR 8417, February 27, 1994).
As a result of a written inquiry and a subsequent lawsuit by U.S.
citizens working aboard foreign-flag purse seine vessels, NMFS learned
earlier this year that U.S. citizens are involved in the ETP purse
seine yellowfin tuna fishery involving the intentional setting on and
encirclement of marine mammals as captains and crew members on foreign-
flag vessels. For the purposes of the prohibitions that were added to
the MMPA by the IDCA, NMFS considers ``any person subject to the
jurisdiction of the United States'' to include any U.S. citizen aboard
a fishing vessel, regardless of the flag of the vessel, located within
the territorial sea of the United States, the U.S. exclusive economic
zone (EEZ), on the high seas, or seaward of the territorial seas of
foreign nations. Therefore, U.S. citizens in other nations' EEZs, but
seaward of the territorial seas of any nation, are subject to the
prohibitions of the MMPA. The highest priority in enforcing these
prohibitions will be against those U.S. citizens, such as captains or
fish captains, who are in charge of or actually control fishing
operations involving the setting on and encirclement of marine mammals.
A lower priority in enforcing these prohibitions will be against crew
members who are not in a position of authority involving the conduct of
fishing operations.
NMFS will continue to enforce all other prohibitions governing the
taking of marine mammals incidental to tuna purse seine fishing
operations, as well as all other prohibitions under the MMPA, within
waters subject to the jurisdiction of the United States, on the high
seas, and seaward of the territorial seas of foreign nations. This area
includes all of the ETP seaward of foreign nations' territorial seas.
The MMPA and NMFS regulations define ``taking'' to include the
harassment, hunting, capturing, or killing of any marine mammal, or the
attempt to do so. Violators of the MMPA and the implementing
regulations are subject to criminal and civil penalties.
This rule proposes to amend 50 CFR 216.24(a) to make clear that the
MMPA prohibitions on intentionally setting on and encircling marine
mammals during tuna purse seine vessel fishing operations apply to all
U.S. citizens regardless of the flag of the vessel. In addition, the
notice proposes to revise the language describing ``prohibited taking''
found at Sec. 216.11 to make clear that the prohibition does not apply
to the territorial seas of foreign nations, but applies seaward of
them.
Classification
This rule proposes to revise MMPA regulations to conform to an
existing statutory prohibition that became effective pursuant to the
IDCA on March 1, 1994. The proposed rule would not establish any new
prohibitions or requirements. The Assistant General Counsel for
Legislation and Regulation of the Department of Commerce has certified
to the Chief Counsel for Advocacy of the Small Business Administration
that the proposed modifications to the regulations, if adopted, would
not have a significant impact on a substantial number of small
entities.
This rule has been determined to be not significant for purposes of
E.O. 12866.
List of Subjects in 50 CFR Part 216
Administrative practice and procedure, Imports, Indians, Marine
mammals, Penalties, Reporting and record keeping requirements,
Transportation.
Dated: October 5, 1994.
Gary C. Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, part 216 is proposed to be
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. In Sec. 216.11, paragraphs (b) and (c) are redesignated as
paragraphs (c) and (d) respectively; the introductory text is revised
and a new paragraph (b) is added to read as follows:
Sec. 216.11 Prohibited taking.
Except as otherwise provided in subparts C, D, and I of this part
216, or in part 228 or 229, it is unlawful for:
* * * * *
(b) Any person, vessel, or conveyance subject to the jurisdiction
of the United States to take any marine mammal seaward of the
territorial sea of any foreign nation, or
* * * * *
3. In Sec. 216.24, paragraphs (a)(2) and (a)(3) are redesignated as
paragraphs (a)(3) and (a)(4), respectively, and a new paragraph (a)(2)
is added to read as follows:
Sec. 216.24 Taking and related acts incidental to commercial fishing
operations.
(a) * * *
(2) It is unlawful for any person or vessel that is subject to the
jurisdiction of the United States, including any citizen of the United
States who is aboard a vessel operating under a foreign flag or under
no flag, intentionally to set a purse seine net on or to encircle any
marine mammal during any tuna fishing operation in waters under the
jurisdiction of the United States, or on the high seas, or seaward of
the territorial sea of any foreign nation, except:
(i) As necessary for scientific research approved by the Inter-
American Tropical Tuna Commission; or
(ii) As authorized by the general permit issued to the American
Tunaboat Association on December 1, 1980, including any restrictions
imposed by law.
* * * * *
[FR Doc. 94-25150 Filed 10-11-94; 8:45 am]
BILLING CODE 3510-22-W
