[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30309]
[[Page Unknown]]
[Federal Register: December 8, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 941109-4309; I.D. 103194B]
Prohibition on the Intentional Lethal Take of Marine Mammals in
Commercial Fishing Operations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Marine Mammal Protection Act (MMPA) Amendments of 1994
established in section 118 a new management regime for the taking of
marine mammals incidental to commercial fishing operations. Among other
things, section 118 prohibits the intentional lethal taking of marine
mammals in the course of commercial fishing operations. In partial
implementation of section 118, NMFS proposes to amend the interim
exemption currently in effect under section 114 to make the prohibition
on intentional lethal takings fully applicable to all commercial
fishing vessels, effective January 1, 1995. All other provisions of the
interim exemption would remain in effect until superseded by further
regulations.
DATES: Comments must be received on or before December 23, 1994.
ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of
Protected Resources, F/PR, National Marine Fisheries Service (NMFS),
1315 East-West Highway, Silver Spring, MD 20910. (Attn: Comments on
Proposed Prohibition on Intentional Lethal Taking.)
FOR FURTHER INFORMATION CONTACT: Dean Wilkinson, Office of Protected
Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION:
Background
Prior to the passage of 1988 amendments to the MMPA (Pub. L. 92-
522), commercial fishers could receive an exemption from the MMPA's
general moratorium on the taking of marine mammals by applying for a
general permit and certificates of inclusion. Such permits generally
allowed the intentional lethal take of marine mammals from nondepleted
stocks in order to protect catch and gear or to protect a human from
personal injury, provided nonlethal means of deterring marine mammals
were attempted and were unsuccessful.
The 1988 amendments to the MMPA (Pub. L. 100-711) exempted, on an
interim basis, commercial fishers who comply with certain registration
and reporting requirements from the general prohibition on taking
marine mammals. The purpose of this exemption was to have NMFS collect
data to be used in setting up a comprehensive management regime
governing fisheries interactions with marine mammals. The 1988
amendments did not allow for the taking of California sea otters or the
intentional lethal taking of Steller sea lions, cetaceans, or marine
mammals from a population stock designated as depleted.
Section 11 of the MMPA Amendments of 1994 established in section
118 a new management regime for the taking of marine mammals incidental
to commercial fishing operations. In order to provide time for
development and implementation, section 15 of the MMPA Amendments of
1994 amended section 114(a)(1) of the MMPA to extend the interim
exemption until September 1, 1995, or until superseded by regulations
prescribed under section 118, whichever is earlier.
Section 118(a)(5) of the amended MMPA, effective April 30, 1994,
provides: [e]xcept as provided in section 101(c) [of the MMPA, as
amended], the intentional lethal take of any marine mammal in the
course of commercial fishing operations is prohibited.
The section 101(c) exception specifies that a taking of a marine
mammal is not a violation of the MMPA, if such taking is imminently
necessary in self-defense or to save the life of another person in
immediate danger.
This rule would amend 50 CFR part 229 to revise the prohibited take
language of the regulations implementing and governing the interim
exemption to include all intentional lethal takes, except when such
taking is imminently necessary in self-defense or to save the life of a
person in immediate danger. It would require that a report be made to
the appropriate NMFS Regional Office within 48 hours, if a marine
mammal is killed in self-defense or in order to save the life of
another person. Reflecting this change, the rule also would remove
language setting forth conditions under which a marine mammal could be
lethally taken and changes applicable reporting requirements to reflect
this change.
NMFS has reason to believe that most commercial fishers do not
intentionally kill marine mammals. Nevertheless, recent evidence shows
that a number of marine mammals are being intentionally lethally killed
in the course of commercial fishing operations in certain fisheries.
Records from one marine mammal rehabilitation facility indicate that 31
California sea lions were admitted after being shot between May 1 and
November 1, 1994. Because full implementation of the section 118 regime
would not result in a mechanism for the allowance of intentional lethal
takes, there is no compelling reason to allow the intentional lethal
taking of marine mammals to continue.
Classification
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 this rule, if adopted as
proposed, would not have a significant economic impact on a substantial
number of small entities. There are low cost means of deterring marine
mammals from stealing a fisher's catch without having to use
intentionally lethal means.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
This rule does not contain a collection-of-information requirement
for purposes of the Paperwork Reduction Act.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: December 5, 1994.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, it is proposed that 50 CFR
part 229 be amended as follows:
PART 229--INTERIM EXEMPTION FOR COMMERCIAL FISHERIES UNDER THE
MARINE MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
2. Section 229.2 is amended by revising paragraph (k) to read as
follows:
Sec. 229.2 Definitions.
* * * * *
(k) Incidental take means the intentional nonlethal or accidental
taking of a marine mammal in the course of commercial fishing
operations.
* * * * *
3. Section 229.4 is amended by revising paragraphs (b)(2)
introductory text, (b)(2)(i)(B), and by adding paragraph (b)(2)(iii) to
read as follows:
Sec. 229.4 Prohibitions.
* * * * *
(b) * * *
(2) Under this part 229, except as provided under paragraph
(b)(2(iii) of this section, it is unlawful to:
(i)(A) * * *
(B) Intentionally lethally take any marine mammal.
* * * * *
(iii) If a taking under paragraph (b)(2)(i)(A) of this section or
paragraph (b)(2)(i)(B) of this section is imminently necessary in self-
defense or to save the life of a person in immediate danger, it is not
an unlawful activity, provided that the taking is reported to the
appropriate Regional Office of the National Marine Fisheries Service
within 48 hours after the end of the fishing trip during which the
taking occurs.
* * * * *
4. Section 229.6 is amended by revising the third sentence of
paragraph (c)(2)(i), removing paragraph (c)(6), and redesignating
paragraphs (c)(7) through (c)(10) as paragraphs (c)(6) through (c)(9),
respectively to read as follows:
Sec. 229.6 Issuance of Exemption Certificates.
* * * * *
(c) * * *
(2) * * *
(i) * * * Marine mammal report/log forms require information on:
The fishery, fishing effort, gear type, and fish species involved; the
marine mammal species (or description of the animal(s), if species is
not known), number, date, and location of marine mammal incidental
takes; type of interaction and any injury to the marine mammal; a
description of any intentional takes (i.e., efforts to deter animals by
nonlethal means to protect gear or catch or efforts to protect human
life involving either lethal or nonlethal means); and any loss of fish
or gear caused by marine mammals. * * *
* * * * *
5. Section 229.7 is amended by revising the last sentence of
paragraph (b), removing paragraph (e), and redesignating paragraph (f)
as paragraph (e), respectively to read as follows:
Sec. 229.7 Requirements for Category III fisheries.
* * * * *
(b) * * * The report must include information on: The fishery,
fishing effort, gear type, and fish species involved; the marine mammal
species (or description of the animal(s), if species is not known),
number, date, and location of all lethal incidental takes; a
description of any intentional lethal take to protect human life; and
any loss of fish or gear caused by marine mammals.
* * * * *
[FR Doc. 94-30309 Filed 12-7-94; 8:45 am]
BILLING CODE 3510-22-W
