[Federal Register Volume 59, Number 169 (Thursday, September 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21645]
[[Page Unknown]]
[Federal Register: September 1, 1994]
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DEPARTMENT OF COMMERCE
[Docket No. 940832-4232; I.D. 080394B]
RIN 0648-AG77
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Changes to the List of Fisheries Under Section 118 of the
Marine Mammal Protection Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed changes to the List of Fisheries.
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SUMMARY: On April 30, 1994, the Marine Mammal Protection Act (MMPA) was
amended and a new section 118 was created to govern the taking of
marine mammals incidental to commercial fishing operations. As required
by section 118, this notice proposes changes to the list of fisheries,
classified by frequency of incidental serious injury or mortality of
marine mammals, and requests comments on the proposed list. Some
suggestions for revising the criteria under which fisheries are
classified are also included, with a request for further comments on
other criteria which should be considered. NMFS intends to publish
revised classification criteria, based on comments received, and to
publish another proposed list of fisheries, using the revised criteria.
DATES: Comments on the proposed changes to the list of fisheries and
suggested revisions to the classification criteria must be received by
November 30, 1994.
ADDRESSES: Send comments to Patricia Montanio, Chief, Marine Mammal
Division, Office of Protected Resources, F/PR2, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910
(Attn: Comments on Proposed Changes to the List of Fisheries).
FOR FURTHER INFORMATION CONTACT: Victoria R. Credle, Office of
Protected Resources, 301-713-2322; Steven Zimmerman, Alaska Region,
907-586-7233; Joe Scordino, Northwest Region, 206-526-6143; James
Lecky, Southwest Region, 310-980-4020; Doug Beach, Northeast Region,
508-281-9254; or Jeff Brown, Southeast Region, 813-893-3366.
SUPPLEMENTARY INFORMATION:
On April 30, 1994, the MMPA was amended and a new section 118 was
created to govern the taking of marine mammals incidental to commercial
fishing operations. The provisions of this section will replace the
current interim exemption system (section 114), when regulations are
put into effect no later than September 1, 1995.
The interim exemption system currently requires the owners/
operators of vessels in Category I and II fisheries to register their
vessels and maintain daily logs of their fishing activities, including
interactions with marine mammals. Vessels in Category I fisheries are
also required to carry an observer if requested by NMFS. Owners/
operators of vessels in Category III fisheries are required to report
all lethal takes of marine mammals within 10 days of return from the
fishing trip during which the take occurred.
Category I fisheries, under section 114, are those fisheries that
have a ``frequent'' take of marine mammals, defined as ``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'' (50
CFR 229.3(b)(1)). Category II fisheries are those fisheries that have
an ``occasional'' take of marine mammals, defined as ``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'' (50 CFR 229.3(b)(2)). Category III fisheries are
those fisheries that have no more than a ``remote'' likelihood of a
take of marine mammals, defined as ``highly unlikely that any marine
mammal will be incidentally taken by a randomly selected vessel in the
fishery in a 20-day period'' (50 CFR 229.3(b)(3)).
Section 118(c)(1) of the MMPA requires that the Secretary of
Commerce publish within 90 days of the enactment of the amendments, any
necessary changes to the list of commercial fisheries that were
published under section 114 and which was in existence on March 31,
1994. These proposed changes must be published in the Federal Register
for public comment for a period of not less than 90 days. On March 31,
1994, a proposed list of fisheries for 1994 had just been published (59
FR 10372, March 4, 1994) and there was a 30-day public comment period
in effect. The final list of fisheries for 1994 has subsequently been
published (59 FR 43818, August 25, 1994), and will remain in effect
until it is replaced by a revised list developed under the provisions
of section 118, which is to occur no later than September 1, 1995.
Under section 118(c)(1), fisheries will be categorized with respect
to a fishery's frequency of incidental marine mammal mortalities or
serious injuries due to commercial fishing operations. This differs
from section 114 in that non-injurious takes, such as entanglements and
harassments, will not be included in the revised classification
criteria.
For the purpose of meeting the statutory deadline specified by the
amendments to the MMPA, NMFS is using the current list of fisheries,
developed under section 114 of the MMPA, as the basis for proposed
changes to the list of fisheries under section 118. Realizing, however,
that certain elements of the existing criteria may be inconsistent with
section 118, these criteria are being considered for revision in the
Criteria section of this document. Revisions to the criteria suggested
by this document should not be considered final or exhaustive, as NMFS
is using this opportunity to solicit alternative classification schemes
through the public comment process. NMFS expects to publish proposed
changes to the classification criteria along with a proposed list of
fisheries based on those revised criteria, and request for comments by
early 1995.
Proposed Changes to the 1994/1995 List of Fisheries
One change to the current criteria required by section 118 of the
MMPA is the type of interaction used to calculate the take rate of
marine mammals. Under section 114, takes included harassments,
entanglements, injuries, and mortalities. Under the new section 118,
only incidental serious injuries and mortalities are considered, and
intentional serious injuries and mortalities are prohibited. The
proposed changes to the current list are based on the assumption that
the prohibition on intentional serious injuries or mortalities will
result in a reduced take rate.
Other changes to the current criteria being considered by NMFS, as
outlined in the next section, may affect the future reclassification of
fisheries. Therefore, changes proposed here should be considered
preliminary and subject to further revision.
1. Reclassify the Alaska Prince William Sound (NMFS Statistical
Area 649) sablefish longline/set line fishery from Category II (Table
2) to Category III (Table 3).
Dahlheim (1988) and Matkin (1986, 1987) indicate losses of three
killer whales from the AB pod during 1985, three in 1986, and one each
in 1987 and 1988. Hall and Cornell (1986) documented that several
killer whales in the AB pod in Prince William Sound showed evidence of
bullet wounds. Missing animals were presumed dead and the mortalities
were believed to have been the result of intentional takes by certain
participants in the sablefish longline fishery, as this fishery lost an
estimated 25 percent of its potential blackcod catch due to killer
whale predation.
The exclusion of intentional serious injuries and mortalities under
section 118 will result in only a remote likelihood of an incidental
serious injury or mortality in this fishery (i.e., it is highly
unlikely that any marine mammal will be taken by incidental serious
injury or mortality by a randomly selected vessel in the fishery during
a 20-day period). Therefore NMFS proposes to reclassify this fishery
from Category II to Category III, based on the assumption that the
intentional use of firearms in this fishery will be halted.
2. Reclassify the Alaska Southern Bering Sea, Aleutian Islands
(NMFS Statistical Reporting Areas 517, 518, 519, 540), and Western Gulf
of Alaska (NMFS Statistical Reporting Area 610 West of 165 deg. W.
sablefish longline/set line fishery from Category II (Table 2) to
Category III (Table 3).
Dahlheim (1988) indicated fishery interactions with killer whales
in 20 percent of sablefish sets in 1988 in the area of Unimak Pass west
to Seguam Pass and north to the Pribilof Islands. Some mortalities were
believed to occur as a result of intentional takes by participants in
the sablefish longline fishery.
The exclusion of intentional serious injuries and mortalities under
section 118 will result in only a remote likelihood of an incidental
serious injury or mortality in this fishery (i.e., it is highly
unlikely that any marine mammal will be taken by incidental serious
injury or mortality by a randomly selected vessel in the fishery during
a 20-day period). Therefore NMFS proposes to reclassify this fishery
from Category II to Category III, based on the assumption that the
intentional use of firearms in this fishery will be halted.
3. Reclassify the Oregon and California south of 45 deg.46'00''
(Cape Falcon, OR) salmon troll fishery from Category II (Table 2) to
Category III (Table 3).
Previous take rate estimates included serious injuries and
mortalities resulting from intentional deterrence actions using
firearms. Intentional serious injuries and mortalities will be
prohibited under section 118. The only estimates of current intentional
take levels available for this fishery are from fishers' logbooks.
Logbook reports indicate that there were 14,897 harassments, 275
injuries, and 182 mortalities due to deterrence actions in 1990, and
9,134 harassments, 74 injuries, and 83 mortalities due to deterrence
actions in 1991. The prohibition on intentional serious injuries and
mortalities under section 118 will result in a remote likelihood of an
incidental serious injury or mortality in this fishery (i.e., it is
highly unlikely that any marine mammal will be taken by incidental
serious injury or mortality by a randomly selected vessel in the
fishery during a 20-day period). Therefore, NMFS proposes to reclassify
this fishery from Category II to Category III, based on the assumption
that the intentional use of firearms in this fishery will be halted.
4. Reclassify the Gulf of Maine salmon aquaculture (net pen)
fishery from Category II (Table 5) to Category III (Table 6).
Previous take rate estimates included serious injuries and
mortalities resulting from intentional deterrence actions using
firearms. Intentional serious injuries and mortalities will be
prohibited under section 118. The prohibition on intentional serious
injuries and mortalities under section 118 will result in a remote
likelihood of an incidental serious injury or mortality in this fishery
(i.e., it is highly unlikely that any marine mammal will be taken by
incidental serious injury or mortality by a randomly selected vessel in
the fishery during a 20-day period). Therefore, NMFS proposes to
reclassify this fishery from Category II to Category III, based on the
assumption that the intentional use of firearms in this fishery will be
halted.
Suggested Revisions to the Classification Criteria
The provisions of section 118 of the MMPA differ in many respects
from the Interim Exemption for Commercial Fisheries (section 114).
Therefore, NMFS believes that the criteria used to determine whether a
fishery has a ``frequent'', ``occasional'', or ``remote likelihood'' of
an incidental serious injury or mortality due to commercial fishing
operations should be reviewed and revised. The following is a
discussion of possible areas that should be considered for revision,
yet this is by no means an exhaustive list of possible changes. The
rationale for suggesting changes to the criteria is based, in part, on
the intent of Congress to improve efforts to identify and address the
most significant problems involving incidental mortality and serious
injury of marine mammals in commercial fishing operations.
This document represents the first step in revising the current
criteria used to classify fisheries in order to be consistent with
section 118. Comments received on this document will be used to revise
and refine criteria, which are expected to be published in early 1995.
Final criteria for classifying fisheries will be published prior to the
September 1, 1995 statutory deadline, in conjunction with regulations
to implement other parts of section 118. For the purposes of beginning
discussion on this matter, the following are provided for
consideration:
1. Definition of a ``Fishery''. Under section 114, NMFS defined
fisheries by gear type, geographical area, and target species, in
accordance with existing state or Federal management designations.
However, for many fisheries, it is difficult to obtain information
about the use of specific gear types, geographical areas, or seasons
when fishery management plans or state fishery permits do not
consistently identify fisheries using these parameters. Also, in order
to concentrate management actions on fishery hot spots or hot seasons,
criteria could be made flexible to address the significantly different
take rates of marine mammals in certain areas or at certain seasons.
NMFS is considering partitioning fisheries as necessary to reflect
concentrations of marine mammals in certain areas within a fishery or
at certain times of the year.
Also, classifying fisheries according to the target species of the
catch may not be appropriate in multi-species fisheries which use an
opportunistic fishing method (i.e., fishers will adapt gear depending
on the availability of different species at different times).
Therefore, NMFS is also considering defining fisheries by the mesh size
of the gear or some other gear characteristic which is not related to
target species.
2. Take Estimates. The classification criteria developed to
implement section 114 were based on an interaction rate (frequent,
occasional, or remote likelihood) of marine mammals with a randomly
selected vessel in a fishery during a 20-day period. This ``by-vessel''
take rate criteria works well in fisheries that have well defined,
consistent daily effort by all of the fishing vessels within a fishery.
However, for many fisheries, fishing effort may vary daily and from
vessel to vessel. In addition, it may be difficult to compare one
vessel's fishing effort with another vessel in the same fishery.
Therefore, NMFS is considering classifying fisheries using alternative
methods.
One possible method is to classify fisheries by the total number of
serious injuries and mortalities in a fishery per year, in order to
assess the impact of a fishery on a particular stock or stocks of
marine mammals. For example, the annual incidental take of a stock
could be considered in terms of its take relative to the Potential
Biological Removal (PBR) of the stock. Fisheries that have a
``frequent'' take of marine mammals could be defined as having an
incidental serious injury and mortality of equal to or greater than 50
percent of the PBR for the stock; fisheries that have an ``occasional''
take of marine mammals could be defined as having an incidental serious
injury and mortality of between 1 and 49 percent of the PBR for the
stock; fisheries that have only a ``remote likelihood'' of a take of
marine mammals could be defined as having an incidental serious injury
and mortality of less than 1 percent of the PBR for the stock. This
method should reference the total fishing effort in each fishery, so
that the number of incidental serious injuries and mortalities can be
considered relative to that total effort. The variation in fishing
effort between vessels in a fishery must also be considered, as well as
the variation between fisheries. This measure of effort should be based
on common parameters that can be applied across a fishery, such as the
duration of a trawl or set; the number of trawls or sets per day,
season, or year; the size of the gear being deployed; the number of
nets used per vessel; the number of net pens per owner and the size of
each pen; etc. Separate classification criteria may have to be
developed for fisheries with different gear types or fishing techniques
if the most appropriate measures of effort cannot be applied to all
fisheries.
NMFS will also consider public comments which propose alternative
methods of determining take rates based on the ``frequent'',
``occasional'', and ``remote likelihood'' of incidental serious
injuries and mortalities of marine mammals due to commercial fishing
operations. These could address both the short term biological
significance of fishery impacts on marine mammal stocks, and/or the
applicability of a method towards assessing the long-term goal of
reducing serious injuries and mortalities to levels approaching zero
(Zero Mortality Rate Goal).
3. Intentional Takes. Under section 118(a)(5), intentional serious
injuries and mortalities of marine mammals in the course of commercial
fishing operations are prohibited. Although certain intentional takes
are currently authorized for some pinniped species under section 114
(after other non-lethal methods have been tried and found to be
ineffective), all intentional lethal takes will be illegal when the
section 118 regime is implemented. Any such takes by fishers will be
subject to the penalties of the MMPA. NMFS is launching a public
outreach and education campaign to inform fishers of changes in the
MMPA. The NMFS is requesting comments on how to factor in intentional
serious injuries and mortalities if they continue to occur after the
section 118 regime is implemented.
4. Treaty Indian Fisheries. NMFS is considering exclusion of the
Pacific Northwest treaty Indian tribal fisheries from the list of
fisheries. The Category I and II fisheries that have treaty Indian
tribe involvement are the northern Washington coastal (area 4 and 4A)
salmon set-net fishery, the Washington Puget Sound Region and inland
waters south of the U.S.-Canada border set-net and drift gillnet salmon
fishery, and the Washington coastal river set-net salmon fishery. The
1994 amendments to the MMPA state:
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 suggests that existing treaty Indian fishing and
hunting rights are not affected by the MMPA, and that tribal fisheries
should be conducted under authority of the Indian treaties rather than
the MMPA. Therefore, the MMPA's mandatory registration systems may not
apply to treaty Indian fishers operating in their usual and accustomed
fishing areas. Since inclusion of the treaty Indian fisheries in the
list of fisheries establishes the obligation to obtain an MMPA
registration under section 118, NMFS is considering the deletion of
references to tribal fisheries in the list of fisheries, and the
removal of the registration requirement for Category I or II treaty
Indian tribe fisheries. 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 the affected stocks can be monitored.
5. Applicability to Zero Mortality Rate Goal. One of the objectives
of the 1994 amendments to the MMPA was to ensure:
....that the procedures for authorizing the incidental taking
of marine mammals in commercial fisheries is consistent with the
long term objective of reducing incidental mortality and serious
injury from commercial fishing operations to insignificant rates
approaching zero.
(Senate section-by-section analysis of S. 1636, March 25, 1994).
NMFS is considering the development of criteria that could be used in
the assessment of a fishery's progress in achieving the zero mortality
rate goal, and whether the criteria used to classify fisheries may be
used to make that assessment.
Other Suggested Changes to Improve the Classification System
The lack of availability of information on marine mammal takes and
fishery effort in many fisheries continues to restrict efforts to
calculate a take per unit effort, or take rate, in order to classify
fisheries. Under the Interim Exemption for Commercial Fisheries
(section 114), information was obtained on take rates using three
methods. The first method involved the collection of information from
vessel owners participating in Category I and II fisheries in the form
of logbooks. The accuracy of this information varied from fishery to
fishery and from vessel owner to vessel owner, and the time delay in
receiving and processing this information limited its usefulness from a
quantitative standpoint. The second method relied on the placement of
observers on a sample of vessels in 15 different Category I fisheries,
providing more accurate yet costly information on marine mammal take
rates. The third method for collecting information was in the form of a
handful of marine mammal mortality reports received from vessel owners
in Category III fisheries. Unfortunately, no information was provided
on fishing effort with these reports. Limitations associated with each
of these methods have resulted in less than adequate information on
take rates for a number of fisheries.
Under section 118, the reporting of serious injuries and
mortalities by commercial fishers will be required, yet there is no
consistent means by which to obtain information on fishing effort. NMFS
is considering methods to increase the accuracy and timeliness of
information on marine mammal takes and fishery effort. One possible
method may be the development of working groups composed of Federal and
state resource managers, marine mammal stranding network members,
commercial fishers, and others with a knowledge of marine mammal
interaction rates with commercial fishing operations. The focus of
these working groups would be the development of fishery profiles (gear
used, seasons, etc.), identification and evaluation of existing sources
of information (logbooks, landing receipts, stranding data, etc.), and
the identification of fisheries for which little information exists,
yet which are suspected of having occasional or frequent incidental
serious injuries or mortalities of marine mammals. These fisheries will
be given high priority when determining the placement of observers.
NMFS is soliciting comments on other possible methods by which the
accuracy and timeliness of information on marine mammal incidental
serious injuries and mortalities, and fishing effort, might be
improved.
References
Dahlheim, M.E. 1988. Killer whale (Orcinus orca) depredation on
longline catches of sablefish (Anoplopoma fimbria) in Alaskan waters.
NWAFC Processed Report 88-14. Northwest and Alaska Fisheries Center,
NMFS U.S. Dep. of Comm.
Hall, J.D., and L.H. Cornell. 1986. Killer whales of Prince William
Sound, Alaska; results of 1985 field research. Sea World Tech. Contrib.
8611C, 15p.
Matkin, C.O. 1986. Killer whale interactions with the sablefish
longline fishery in Prince William Sound, Alaska, 1985, with comments
on the Bering Sea. Unpubl. Rep. to the National Marine Fisheries
Service, Juneau, AK, contract 40-HANF-6-00068, 10 p. Available from the
National Marine Mammal Laboratory, 7600 Sand Point Way NE., Seattle, WA
98115.
Matkin, C.O., G. Ellis, O. von Ziegesar, and R. Steiner. 1987.
Killer whales and longline fisheries in Prince William Sound, Alaska,
1986. Unpubl. Rep. to the Northwest and Alaska Fisheries Center,
contract 40ABNF6 2262, 19 p. Available from the National Marine Mammal
Laboratory, 7600 Sand Point Way NE., Seattle, WA 98115.
Dated: August 26, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
[FR Doc. 94-21645 Filed 8-31-94; 8:45 am]
BILLING CODE 3510-22-F
