Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Extension of Permits

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 120998B]

Taking of Threatened or Endangered Marine Mammals Incidental to

Commercial Fishing Operations; Extension of Permits

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Extension of permits; request for comments.

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SUMMARY: NMFS hereby extends the current permits for those fisheries

that have negligible impacts on marine mammal stocks listed as

threatened or endangered under the Endangered Species Act (ESA) for 6

months through June 30, 1999. This action allows the incidental, but

not intentional, taking of such marine mammals in commercial fishing

operations.

NMFS also requests comments on the criteria for determining whether

such fisheries have a negligible impact on marine mammal stocks and on

such other issues as whether authorizations should include provisions

for taking that does not involve mortalities and/or serious injuries to

marine mammals.

DATES: Effective January 1, 1999-June 30,1999. Comments on the criteria

for issuance of permits will be accepted through February 16, 1999.

ADDRESSES: Send comments on the criteria for issuance of permits to

Chief, Marine Mammal Division, Office of Protected Resources, National

Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD

20910-2337.

FOR FURTHER INFORMATION CONTACT: Dean Wilkinson, NMFS (301) 713-2322.

SUPPLEMENTARY INFORMATION: Section 101(a)(5)(E) of the Marine Mammal

Protection Act (MMPA) requires the authorization of the incidental

taking of individuals from marine mammal stocks listed as threatened or

endangered under the Endangered Species Act (ESA) in the course of

commercial fishing operations if it is determined that (1) incidental

mortality and serious injury will have a negligible impact on the

affected species or stock; (2) a recovery plan has been developed or is

being developed for such species or stock under the ESA; and (3) where

required under section 118 of the MMPA, a monitoring program has been

established, vessels engaged in such fisheries are registered in

accordance with the provisions contained in section 118, and a take

reduction plan has been developed or is being developed for such

species or stock.

``Negligible impact'' as defined in 50 CFR 216.103 and as applied

here is ``an impact resulting from the specified activity that cannot

be reasonably expected to, and is not reasonably likely to, adversely

affect the species or stock through effects on annual rates of

recruitment or survival.''

Section 118 requires the registration of vessels in fisheries

listed as either Category I or Category II on the annual list of

commercial fisheries. A Category I fishery is a fishery with ``frequent

incidental mortality and serious injury of marine mammals.'' A Category

II fishery is a fishery with ``occasional incidental mortality and

serious injury of marine mammals.'' Registration is not required for

Category III fisheries, which have ``a remote likelihood of or no known

incidental mortality or serious injury of marine mammals.'' The

proposed list of fisheries for 1999 was published on August 11, 1998

(63 FR 42803).

On August 31, 1995 (60 FR 45399), NMFS issued interim final permits

for those fisheries meeting the conditions under section 101(a)(5)(E)

of the MMPA. As a starting point for making determinations, NMFS

announced it would consider a total annual serious injury and mortality

of not more than 10 percent of a threatened or endangered marine mammal

stock's potential biological removal (PBR) level to be insignificant.

PBR is defined in the MMPA as ``the maximum number of animals, not

including natural mortalities, that may be removed from a marine mammal

stock while allowing that stock to reach or maintain its optimum

sustainable population.'' NMFS also announced that such a criterion

would not be the only factor in evaluating whether a particular level

of take would be considered negligible. Because population abundance

and fishery-related mortality information used in calculation of PBR

have varying degrees of uncertainty, NMFS determined that such factors

as population trend and reliability of abundance and mortality

estimates also should be considered.

Based on requirements of section 101(a)(5)(E) of the MMPA and these

criteria, NMFS issued interim final permits to allow for the

incidental, but not intentional, taking of three stocks of endangered

or threatened marine mammals: (1) Humpback whale, central North Pacific

stock; (2) Steller sea lion, eastern stock; and (3) Steller sea lion,

western stock. Permits were issued for Category I and Category II

fisheries taking animals from these stocks. Consistent with the

provisions of section 101(a)(5)(E)(ii) of the MMPA, NMFS determined

that permits were not required for Category III fisheries, which are

not required to register under section 118 of the Act. The only

requirement for Category III fisheries is that any serious injury or

mortality be reported.

The MMPA provides that permits may be issued for a three year

period. The current permits expire on December 31, 1998. The list of

permitted fisheries was published on August 31, 1995 (60 FR 45401).

Currently, none of the permitted fisheries has a serious injury and

mortality level above 10 percent of PBR for listed species. Combined

mortality from the western stock of Steller sea lions for all currently

permitted fisheries is estimated to be 30.3, and ten percent of PBR is

35. Combined mortality from the eastern stock of Steller sea lions is

estimated to be 13.8, and ten percent of PBR is 136. Combined mortality

from the central north Pacific stock of humpback whales caused by

currently permitted fisheries is 0.8 and ten percent of PBR is 0.74.

Because the population is increasing and the estimated mortality is

less than one whale per year, current permits could be reissued.

If existing criteria were to be used, permits could be reissued for

a 3-year period for fisheries affecting all three stocks. NMFS views

this as an opportunity to review existing criteria for the issuance of

permits and to address issues that have arisen since the permits were

first issued. Therefore, NMFS is extending the existing permits for a

6-month period and requesting public comment before issuing new

permits. In accordance with the MMPA, opportunity will also be given to

comment on the permits before they are issued.

NMFS requests comments on whether the current criteria for issuance

of permits under section 101(a)(5)(E) of the MMPA are adequate or

whether changes should be made. Currently, the method

[[Page 71895]]

for determinating negligible impact is based on 10 percent of PBR with

other factors considered when appropriate. Some suggestions have been

made including: the determination be based on recovery rate for the

stock involved; some other percentage of PBR be used since PBR already

contains a recovery factor; or the criteria be related to the zero

mortality rate goal. In addition, NMFS invites comments on how

cumulative impact of a number of different fisheries should affect

permit issuance. This is not an issue with the existing permits, but it

may be a consideration in the future.

A couple of issues have arisen since the first permits were issued,

and NMFS invites comment on how they should be addressed. First, there

is an issue as to whether the permits should apply to takings that do

not involve serious injuries and mortalities. It is not absolutely

clear whether Congress intended section 101(a)(5)(E) to apply to all

types of takes. The use of the term ``taking'' in the introductory

portion of the section does not appear to be limited to serious

injuries and mortalities, but the criteria for issuance of a permit

focus only on the impact of serious injuries and mortalities. There is

a question as whether permits should cover both types of taking. In

addition, to date, the agency has not considered issuing permits solely

for takings that do not involve serious injuries or mortalities. NMFS

invites comments on whether it should issue permits to cover such

takings and, if so, what criteria should be used in making

determinations concerning the issuance of such permits.

Second, NMFS request comments on whether it should or can issue

permits covering less serious types of taking when permits cannot be

issued to fisheries for takings involving serious injury or

mortalities.

Issuance of Permits

Section 105(a)(5)(E) permits are hereby issued to all vessel owners

registered in fisheries currently holding such permits. The permits

will be effective on January 1, 1999, and will expire on June 30, 1999.

Permits may be suspended or revoked if the level of taking

specified in the Incidental Take Statement prepared under section 7 of

the ESA for each stock for which an incidental take permit is issued is

exceeded.

Dated: December 23, 1998.

P. Michael Payne,

Acting Director, Office of Protected Resources, National Marine

Fisheries Service.

[FR Doc. 98-34451 Filed 12-29-98; 8:45 am]

BILLING CODE 3510-22-F