Taking of Marine Mammals Incidental to Commercial Fishing Operations; Changes to the List of Fisheries Under Section 118 of the Marine Mammal Protection Act

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]

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