[Federal Register Volume 59, Number 43 (Friday, March 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4923]
[[Page Unknown]]
[Federal Register: March 4, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 940250-4050; I.D. 122893D]
Regulations Governing the Taking of Marine Mammals Incidental to
Commercial Fishing Operations; Interim Exemption for Commercial
Fisheries
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed List of Fisheries for calendar year 1994; request for
comments.
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SUMMARY: NMFS requests comments and further information on the proposed
List of Fisheries for calendar year 1994 as well as several other
actions associated with the Interim Exemption for Commercial Fishing
under the Marine Mammal Protection Act (MMPA).
DATES: Comments must be received on or before April 4, 1994.
ADDRESSES: Send comments to Dr. William W. Fox, Jr., Director, Office
of Protected Resources, F/PR, National Marine Fisheries Service, 1315
East-West Highway, Silver Spring, MD 20910 (Attn: Comments on Proposed
List of Fisheries).
FOR FURTHER INFORMATION CONTACT: Victoria R. Credle, 301-713-2322.
SUPPLEMENTARY INFORMATION: Section 114 of the MMPA establishes an
interim exemption for the taking of marine mammals incidental to
commercial fishing operations and requires NMFS to publish and annually
update a List of Fisheries, along with a list of the marine mammals and
the number of vessels or persons involved in each such fishery, in
three categories, as follows:
(I) A frequent incidental taking of marine mammals;
(II) An occasional incidental taking of marine mammals; or
(III) A remote likelihood of, or no known, incidental taking of
marine mammals.
Based on Congressional guidance, NMFS interpretation of the 1988
Amendments, public comment, and meetings and consultations with state
and Federal agencies, Regional Fishery Management Councils, and other
interested parties, NMFS published the original List of Fisheries on
April 20, 1989 (54 FR 16072). NMFS also published an interim rule
governing the taking of marine mammals incidental to commercial fishing
operations on May 19, 1989 (54 FR 21910), and a final rule governing
reporting of the take of marine mammals incidental to commercial
fishing operations on December 15, 1989 (54 FR 51718).
On June 14, 1993 (58 FR 32905), NMFS published the interim final
List of Fisheries for 1993 and requested comments and information on
the changes contained therein. All comments received were in support of
the changes to the interim final List of Fisheries. A summary of the
comments received are provided in the following section. Proposed
revised changes for the 1994 List of Fisheries are based on the
classification of fisheries as published in the 1993 interim final List
of Fisheries.
The following criteria were used in classifying fisheries in the
List of Fisheries:
Category I. There is documented information indicating a
``frequent'' incidental taking of marine mammals in the fishery.
``Frequent'' means that it is highly likely that more than one marine
mammal will be incidentally taken by a randomly selected vessel in the
fishery during a 20 day period.
Category II. (1) There is documented information indicating an
``occasional'' incidental taking of marine mammals in the fishery, or
(2) in the absence of information indicating the frequency of
incidental taking of marine mammals, other factors such as fishing
techniques, gear used, methods used to deter marine mammals, target
species, seasons and areas fished, and species and distribution of
marine mammals in the area suggest there is a likelihood of at least an
``occasional'' incidental taking in the fishery. ``Occasional'' means
that there is some likelihood that one marine mammal will be
incidentally taken by a randomly selected vessel in the fishery during
a 20 day period, but that there is little likelihood that more than one
marine mammal will be incidentally taken.
Category III. (1) There is information indicating no more than a
``remote likelihood'' of an incidental taking of a marine mammal in the
fishery, or (2) in the absence of information indicating the frequency
of incidental taking of marine mammals, other factors such as fishing
techniques, gear used, methods used to deter marine mammals, target
species, seasons and areas fished, and species and distribution of
marine mammals in the area suggest there is no more than a remote
likelihood of an incidental take in the fishery. ``Remote likelihood''
means that it is highly unlikely that any marine mammal will be
incidentally taken by a randomly selected vessel in the fishery during
a 20-day period.
Section 114(b)(1)(C) of the MMPA, requires the Assistant
Administrator for Fisheries, NOAA, to annually publish and request
comments on proposed revisions to the List of Fisheries to be effective
for the next calendar year.
Comments Received on the 1993 Interim Final List of Fisheries
Thirteen comments were received in response to the request for
comments on the interim final List of Fisheries for 1993. All of the
comments received were in support of the changes published in the
interim final List of Fisheries, and are summarized below.
Alaska Prince William Sound (Eshamy, Coghill, and Unakwik
districts) Drift Gill Net Fishery and the Alaska Copper River and
Bering River (adjacent to Prince William Sound) Drift Gill Net Fishery
Twelve comments were received supporting the split of the former
Alaska Prince William Sound drift gill net fishery into two separate
fisheries, based on the difference in take rates in the two areas. All
comments received also supported the reclassification of the Alaska
Prince William Sound (Coghill, Eshamy, and Unakwik districts) drift
gill net fishery from Category I to Category II.
Atlantic, Caribbean, and Gulf of Mexico Tuna, Shark, and Swordfish
Pair Trawl Fishery
One comment was received supporting the reclassification of the
Atlantic, Caribbean, and Gulf of Mexico tuna, shark, and swordfish pair
trawl fishery from Category II to Category I. The individual making the
comment also suggested that all pair trawl fisheries be reclassified as
Category I fisheries. NMFS is aware of only one other pair trawl
fishery which operated for a short time in the Gulf of Maine, targeting
groundfish. This fishery has been inactive following issuance of
emergency regulations published on June 8, 1993 (58 FR 32062).
Amendment 5 of the New England Groundfish Fishery Management Plan,
approved on January 3, 1994, contains measures to continue the ban on
the use of pair trawl gear in this fishery indefinitely. If new
information is received regarding the use of pair trawl gear in other
areas, further action will be taken on this recommendation.
Proposed Changes
1. Recategorize the Alaska Copper River and Bering River (adjacent
to Prince William Sound) salmon drift gill net fishery from Category I
(Table 1) to Category II (Table 2).
Many of the comments received on the 1993 interim final List of
Fisheries indicated that the take rates given for the Alaska Copper
River and Bering River (adjacent to Prince William Sound) drift gill
net fishery were overestimated. Take rates were based on the total
number of interactions, which included momentary interactions with the
nets, e.g., animals brushing up against the net or swimming over it, as
well as serious injuries, and mortalities. Many individuals submitting
comments noted that if only those interactions resulting in serious
injuries or mortalities were used to calculate take rates, the take
rate would be much less than that reported in the interim final List.
Therefore, NMFS has reviewed the observer data collected in this
fishery and calculated a revised take rate of 0.56 marine mammal takes
per 20 days of fishing, based on an estimated 252 serious injuries, and
kills in 8,883 fishing vessel days. Based on the calculated take rate,
NMFS proposes reclassification of the Alaska Copper River and Bering
River (adjacent to Prince William Sound) drift gill net fishery from
Category I to Category II.
2. Recategorize the WA, OR Lower Columbia River salmon drift gill
net fishery from Category I (Table 1) to Category III (Table 3).
Marine mammal/fishery interaction and incidental take data have
been collected in this fishery since 1991 under a marine mammal
observer program that was completed at the end of calendar year 1993.
Incidental take data have been collected by observers from the two
major fishing seasons (winter and fall) with approximately 6 percent
coverage of fishing effort in winter 1991, 4 percent in fall 1991, 10
percent in winter 1992, 7 percent in fall 1992, and 7 percent in winter
1993. Percent observer coverage for the fall 1993 fishery is currently
being estimated, and will be completed after all landing data have been
reviewed. Only one marine mammal mortality, a harbor seal, was observed
in 3 years of observations in the fall fisheries (1991, 1992, and
1993), while a total of 28 marine mammal serious injuries or
mortalities (24 harbor seals and four California sea lions) were
observed over the course of 3 years of observations in the winter
fisheries (1991 through 1993). Based on the observer data from 1991-
winter 1993 (fall 1993 data analysis is underway), less than 0.5 marine
mammals are taken per vessel per 20 days of fishing in this fishery.
Based on this, NMFS proposes that the WA, OR Lower Columbia River
salmon drift gill net fishery be recategorized from Category I to
Category III.
3. Recategorize the WA Willapa Bay salmon drift gill net fishery
from Category I (Table 1) to Category III (Table 3).
Marine mammal/fishery interaction and incidental take data have
been collected in this fishery since 1991 under a marine mammal
observer program that was completed at the end of calendar year 1993.
Incidental take data have been collected by observers from about 2 to
13 percent of the fishing effort since 1991. No marine mammal
mortalities have been observed. Because the incidence of take is rare
and does not meet the criteria for categorizing fisheries in Category I
or II, NMFS proposes that the WA Willapa Bay salmon drift gill net
fishery be recategorized from Category I to Category III.
4. Recategorize the WA Grays Harbor salmon set and drift gill net
fishery from Category I (Table 1) to Category III (Table 3).
Marine mammal/fishery interaction and incidental take data have
been collected in this fishery since 1991 under a marine mammal
observer program that was completed at the end of calendar year 1993.
Incidental take data have been collected by observers from about 4 to
10 percent of the fishing effort since 1991. Only one marine mammal
mortality, a harbor seal, has been observed. Because the incidence of
take is rare and does not meet the one take per vessel per 20 days
criteria for categorizing fisheries in Category I or II, NMFS proposes
that the WA Grays Harbor salmon set and drift gill net fishery be
recategorized from Category I to Category III.
5. Recategorize all California gill net fisheries (except the CA
Klamath River gill net fishery, Table 2), based on mesh size of net, by
adding CA set and drift gill net fisheries that use a stretched mesh
size of greater than 3.5 inches (8.9 cm) to Category I (Table 1),
adding set and drift gill net fisheries that use a stretched mesh size
of 3.5 inches (8.9 cm) or less to Category III (Table 3), dropping all
other CA set and drift gill net fisheries, including: the CA thresher
shark and swordfish drift gill net fishery (Table 1), the CA halibut
set gill net fishery (Table 1), the CA soupfin shark, yellowtail, white
sea bass set gill net fishery (Table 1), the CA white croaker, bonito,
and flying fish gill net fishery (Table 2), and redefining the WA, OR,
CA herring, smelt, shad, sturgeon, bottom fish, mullet, perch, rockfish
gill net fishery (Table 3) to include only WA and OR.
Since 1989, the categorization of gill net fisheries in California
has been based on the species being targeted and the frequency of
marine mammal mortality. Reviews of information on the rate of marine
mammal mortality in a range of gill net mesh sizes indicate that larger
mesh sizes (greater than 3.5 inches or 8.9 cm stretched mesh size)
entangle marine mammals at a much higher rate than smaller mesh sizes
(less than 3.5 inches or 8.9 cm stretched mesh size) (Miller 1983,
Vojkovich 1987, 1988, 1989, Barlow et al. 1992). Observer placement in
Category I fisheries, as required by the MMPA, could be achieved more
effectively by evaluating the type of gear that will be used instead of
the intended target species. Therefore, NMFS proposes that all
California gill net fisheries (except the CA Klamath River fishery) be
reclassified based on stretch mesh size, rather than by target species.
Set or drift gill net vessels that use mesh sizes greater that 3.5
inches (8.9 cm), such as the CA thresher shark and swordfish drift gill
net fishery (Table 1), the CA halibut set gill net fishery (Table 1),
the CA soupfin shark, yellowtail, white sea bass set gill net fishery
(Table 1) would remain in Table 1 and be subject to the requirements of
a Category I fishery. Set or drift gill net vessels that use mesh sizes
less than or equal to 3.5 inches (8.9 cm), such as the CA white
croaker, bonito, and flying fish gill net fishery (Table 2), and the
WA, OR, CA herring, smelt, shad, sturgeon, bottom fish, mullet, perch,
rockfish gill net fishery (Table 3) would be subject to the
requirements for a Category III fishery.
6. Recategorize the GME Atlantic salmon aquaculture (net pen)
fishery from Category III (Table 6) to Category II (Table 5).
Harbor seals and gray seals are known to interact with salmon net
pens in the Gulf of Maine (GME), yet the rate at which interactions
occur may be increasing based on stranding reports and communication
with net pen owners and their representatives. Recently, the Maine
Aquaculture Association appealed to NMFS to provide net pen owners with
a means for limited intentional lethal taking of seals, indicating a 10
percent loss of salmon due to predation by seals. In their appeal, they
noted that a ``Predator Control Seminar'' was held in Eastport, Maine,
in April 1993 to discuss the effectiveness of non-lethal means of
deterring seals. The group determined that although non-lethal
deterrence efforts are being employed, ``periodic intentional lethal
take of individual seals is a necessary tool for the continued success
of this industry.''
Owners of salmon net pens have been subject to the reporting
requirements of a Category III fishery, which require that all lethal
takes of marine mammals be reported to NMFS within 10 days. However,
only limited reports of seal mortalities due to salmon net pen
operations have been received by NMFS since 1989. NMFS is concerned
that the take rate of marine mammals in salmon net pen operations may
be greater than previously estimated, and therefore proposes that the
Gulf of Maine salmon net pen fishery be reclassified from Category III
to Category II.
Literature Cited
Barlow, J., P. Perkins, and M. Beeson. 1992. Report on pinniped and
cetacean mortality in California gillnet fisheries: 1990-1991. NMFS
SWFC Admin. Rep. LJ-92-14.
Miller, D., M. Herder, and J. Scholl. 1983. California marine
mammal-fishery interaction study, 1979-1981. NMFS SWFC Admin. Rep.
LJ-83-13C.
Vojkovich, M., R. Reed, and K. Hieb. 1987. Progress report: Southern
California nearshore gill and trammel net study, 1986. State of
California, Resources Agency, Dept. of Fish and Game. Marine
Resources Branch, Long Beach, CA.
Vojkovich, M., K. Miller, and R. Reed. 1988. Progress report:
Southern California nearshore gill and trammel net study, 1987.
State of California, Resources Agency, Dept. of Fish and Game.
Marine Resources Branch, Long Beach, CA.
Vojkovich, M., K. Miller, and D. Aseltine. 1989. Summary of
nearshore gill net observation data for 1988 and 1989. State of
California, Resources Agency, Dept. of Fish and Game. Marine
Resources Branch, Long Beach, CA.
Dated: February 25, 1994.
Rolland A. Schmitten,
Assistant Administrator for Fisheries.
[FR Doc. 94-4923 Filed 3-3-94; 8:45 am]
BILLING CODE 3510-22-P
