Regulations Governing the Taking of Marine Mammals Incidental to Commercial Fishing Operations; Interim Exemption for Commercial Fisheries

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]

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