Taking and Importing of Marine Mammals

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 940240-4040; I.D. 020394B]

Taking and Importing of Marine Mammals

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of closure and notice of a court-ordered prohibition.

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SUMMARY: The Secretary of Commerce announces a prohibition on the

taking of any dolphins under the general permit issued to the American

Tunaboat Association (ATA) in the U.S. yellowfin tuna fishery in the

eastern tropical Pacific Ocean (ETP) beginning at 0001 hours local

time, February 8, 1994, to ensure that the aggregate dolphin mortality

quota for 1994 is not exceeded. The Assistant Administrator for

Fisheries, NOAA, has determined that the 1994 calendar year aggregate

maximum allowable quota mandated by the International Dolphin

Conservation Act (IDCA) would have been reached if additional taking of

dolphins under the permit was allowed to continue.

In addition, NMFS issues a notice of a January 27, 1994, court-

ordered prohibition on the taking of any of the northeastern stock of

offshore spotted dolphins under the ATA permit, implemented by NMFS on

February 1, 1994, and expanded by NMFS on February 4, 1994, to include

all stocks of offshore spotted dolphins. This prohibition is being

incorporated as a new element in the marine mammal program of the

United States.

DATES: The prohibition on the taking of any dolphins under the ATA

permit was effective at 0001 hours local time, February 8, 1994, until

0001 hours local time, January 1, 1995. Comments on this notice must be

received March 24, 1994. The prohibition on the setting on the

northeastern stock of offshore spotted dolphin was effective February

1, 1994. The prohibition on the taking of all offshore spotted dolphin

was effective February 4, 1994.

ADDRESSES: Comments should be sent to Ms. Anneka W. Bane, Acting

Director, Southwest Region, NMFS, 501 West Ocean Boulevard, suite 4200,

Long Beach, CA 90802; telephone 310-980-4001; fax 310-980-4018.

FOR FURTHER INFORMATION CONTACT: Mr. James H. Lecky, Chief, Protected

Species Division, Southwest Region, NMFS, telephone 310-980-4015.

SUPPLEMENTARY INFORMATION: The Marine Mammal Protection Act (MMPA), as

amended in 1992 by the IDCA, established various overall quotas

applicable to the U.S. tuna purse seine fleet fishing under the ATA

general permit in the ETP. One of the primary purposes of the IDCA was

to secure multilateral agreements between the United States and other

purse seine fishing nations, establishing a 5-year moratorium on the

use of purse seines to encircle marine mammals. Such a moratorium was

to have taken effect beginning March 1, 1994, on which date the ATA

permit would have expired. The IDCA set a maximum allowable mortality

at 800 during the 14-month period beginning January 1, 1993, and ending

March 1, 1994. The IDCA also required that, if there was no

international agreement and the permit did not expire on March 1, 1994,

the maximum allowable mortality each year could not exceed the number

of dolphin mortalities that occurred under the permit during the

previous year. Furthermore, total dolphin mortalities occurring under

the permit each year must continue to be reduced by statistically

significant amounts each year to levels approaching zero by December

31, 1999.

The U.S. fleet killed 115 dolphins in calendar year 1993. In the

process of determining what would constitute a ``statistically

significant'' reduction in the maximum allowable mortality under the

ATA permit for the calendar year 1994, NMFS determined that the U.S.

fleet had killed 107 dolphins in the period from January 1, 1994,

through February 6, 1994. Given that the maximum allowable mortality

under the ATA permit could not exceed 114 dolphins for the period

January 1 to December 31, 1994, and given that NMFS predicts that the

number of dolphins killed incidentally in the U.S. tuna purse seine

fishery in the ETP would have reached 114 within a matter of days, NMFS

prohibited the taking of any dolphins under the ATA permit by notice to

the vessels on February 7, 1994. This prohibition will remain in effect

until 0001 hours local time January 1, 1995, when the next year's

dolphin quota becomes available.

On January 27, 1994, the United States Court for the Northern

District of California ordered NMFS to prohibit, effective immediately,

the incidental taking under the ATA permit, of any northeastern

offshore spotted dolphins in the ETP. The court order also requires

NMFS to issue final regulations within 40 days of the date of the

order, prohibiting the encirclement of any schools of dolphins in which

northeastern offshore spotted dolphin are observed prior to release of

the net skiff, and incorporating such prohibition into the

comparability standards developed pursuant to section 1371(a)(2)(B) of

the MMPA.

Pursuant to the January 27 court order, NMFS, on February 1, 1994,

advised U.S. vessels fishing under the ATA general permit that all sets

on the northeastern stock of offshore spotted dolphin were prohibited

due to their recently determined status as depleted under the MMPA (58

FR 58285, Nov. 1, 1993). On February 4, 1994, these U.S. vessels were

further advised that the take of all offshore spotted dolphin was

prohibited effective immediately, under provisions of the court order

requiring NMFS to minimize the take of northeastern offshore spotted

dolphin. NMFS is developing regulations pursuant to the court order to

implement these new elements of its marine mammal program. NMFS is also

notifying affected foreign harvesting nations, as required by the court

order, of the effective dates of the changes to the U.S. marine mammal

program.

This action is not subject to review under E.O. 12866.

Dated: February 15, 1994.

Charles Karnella,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

[FR Doc. 94-3835 Filed 2-18-94; 8:45 am]

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