[Federal Register Volume 69, Number 83 (Thursday, April 29, 2004)]
[Proposed Rules]
[Pages 23477-23491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9753]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 030630163-4122-02, I.D. 052303F]
RIN 0648-AR15


Authorization for Commercial Fisheries Under the Marine Mammal 
Protection Act of 1972; Zero Mortality Rate Goal

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments

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SUMMARY: The Marine Mammal Protection Act (MMPA) was enacted in 1972 
with the ideal of eliminating

[[Page 23478]]

mortality and serious injury of marine mammals incidental to commercial 
fishing operations. In 1994, Congress amended the MMPA and established 
a requirement that the level of incidental mortality and serious injury 
of marine mammals be reduced to insignificant levels approaching a zero 
rate by April 30, 2001, which is commonly referred to as the Zero 
Mortality Rate Goal (ZMRG). To implement the ZMRG, NMFS must establish 
a threshold level for mortality and serious injury that would meet this 
requirement. NMFS proposes in this rule that this threshold level be 10 
percent of the Potential Biological Removal level (PBR) for a stock of 
marine mammals. NMFS solicits comments on this proposed rule and on the 
draft Environmental Assessment (EA) for this action.

DATES: Comments must be received by June 1, 2004.

ADDRESSES: Comments should be submitted to Chief, Marine Mammal 
Conservation Division, Office of Protected Resources, NMFS (F/PR2), 
1315 East-West Highway, Silver Spring, MD 20910. Alternatively, 
comments may be submitted by email to [email protected], through the 
Federal e-Rulemaking Portal, http://www.regulations.gov (follow the 
instructions for submitting comments), or by facsimile (fax) to (301) 
427-2516.

FOR FURTHER INFORMATION CONTACT: Tom Eagle, Office of Protected 
Resources, NMFS, Silver Spring, MD (301) 713-2322, ext. 105, or email 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    Copies of the MMPA Bulletin and marine mammal stock assessment 
reports (SARs) are available at http://www.nmfs.noaa.gov/prot--res/
overview/mm.html[numsign]mmpa. Public comments on the Advance Notice of 
Proposed Rulemaking, the draft EA, and other information related to 
this proposed rule are available on the Internet at the address above 
or at http://www.nmfs.noaa.gov/pr/ (see ``Recent News and Hot 
Topics'').

Background

    On July 9, 2003 (68 FR 40888), NMFS published an advance notice of 
proposed rulemaking (ANPR) describing options for defining provisions 
of the ZMRG, which includes the requirement under the MMPA for 
commercial fisheries to reduce incidental mortality and serious injury 
of marine mammals to insignificant levels approaching a zero mortality 
and serious injury rate. The ANPR provides a detailed discussion of the 
legislative history regarding ZMRG.
    The ZMRG has been a part of the MMPA since the statute was enacted 
in 1972. Although the legislative history is clear that the ideal for 
the ZMRG is to eliminate mortality and serious injury of marine mammals 
incidental to commercial fishing operations, it also clear that 
Congress recognized that such an ideal could not be achieved with 
existing technologies. Prior to 1994, the MMPA contained no specific 
deadline for achieving the ZMRG. Thus, the ZMRG expressed the ideal 
that U.S. commercial fisheries should continue to improve fishing gear 
and practices to eliminate incidental mortality rather than to rely on 
current fishing technologies that may continue deaths of marine 
mammals.
    In 1994, Congress amended the MMPA and established in section 
118(b)(1), 16 U.S.C. 1387(b)(1), a deadline of April 30, 2001, to 
reduce incidental mortality and serious injury of marine mammals to 
insignificant levels approaching a zero rate. With the establishment of 
the deadline, the ZMRG moved from a philosophy of continually seeking 
to improve fishing methods and technologies to a goal with a specific 
deadline.
    The ZMRG is described in MMPA section 118(b). First, this section 
establishes target levels of incidental mortality and serious injury 
(insignificant levels approaching a zero mortality and serious injury 
rate) and a date to achieve the target (April 30, 2001). Second, the 
MMPA states that fisheries that maintain insignificant levels of 
serious injury and mortality of marine mammals approaching a zero rate 
shall not be required to further reduce their mortality and serious 
injury rate. Third, the MMPA directs NMFS to complete a review of the 
progress of all commercial fisheries, by fishery, toward the target 
levels of incidental mortality and serious injury and to submit to 
Congress a report of the review. The report must also note any 
commercial fishery for which additional information is required to 
accurately assess the level of incidental mortality and serious injury 
of marine mammals in the fishery. Finally, if the results of the review 
indicate that mortality and serious injury incidental to a commercial 
fishery are inconsistent with target levels of mortality and serious 
injury, then NMFS must take appropriate action under MMPA section 
118(f), which provides the process for developing and implementing take 
reduction plans (TRPs).
    The MMPA directs NMFS to develop and implement a TRP in cases where 
strategic stocks (threatened, endangered, or depleted stocks or stocks 
for which human-caused mortality exceeds the calculated PBR) interact 
with Category I or II fisheries (Category I and II fisheries are those 
that have frequent or occasional, respectively, incidental mortality 
and serious injury of marine mammals; see definitions at 50 CFR 229.2), 
and the MMPA allows NMFS to develop and implement a TRP for cases in 
which a non-strategic stock interacts with a Category I fishery which 
NMFS determines has a high level of mortality and serious injury across 
a number of such stocks. The MMPA contains no provisions for NMFS to 
develop and implement a TRP to reduce mortality and serious injury of 
non-strategic stocks of marine mammals incidental to Category II 
fisheries.
    The MMPA provides that the short-term goal of a TRP is to reduce 
mortality and serious injury of marine mammals to levels below PBR 
within 6 months. The MMPA states that the long-term goal of a TRP is to 
reduce, within 5 years of its implementation, the incidental mortality 
and serious injury of marine mammals incidentally taken in the course 
of commercial fishing to insignificant levels approaching a zero 
mortality and serious injury rate, taking into account the economics of 
the fishery, the availability of existing technology, and existing 
state or regional fishery management plans. Neither the MMPA nor its 
legislative history indicate how these factors must be taken into 
account. The legislative history, however, indicates that Congress 
understands that available technologies may be insufficient to achieve 
the ideal goal of eliminating incidental mortality and serious injury 
of marine mammals within the economic constraints of commercial 
fisheries.
    The MMPA does not address clearly the situation in which available 
technology is insufficient to reduce incidental mortality and serious 
injury to insignificant levels in a manner that is economically 
feasible for fisheries. The legislative history makes repeated 
references to Congressional intent to avoid shutting down fisheries or 
putting an overwhelming economic burden on fisheries to achieve the 
goal, and it contains many references to the use of the best available 
technologies as evidence of progress toward the ZMRG. The requirement 
in MMPA section 118(b)(1) provides no allowance for consideration of 
economics and technology in fisheries having reduced incidental 
mortality and serious injury to insignificant levels approaching a zero 
rate. However, MMPA section

[[Page 23479]]

118(f) specifically incorporates this consideration into the long-term 
goal of TRPs to reduce mortality and serious injury to insignificant 
levels approaching a zero rate.
    Finally, the ZMRG does not explicitly exclude any commercial 
fisheries from achieving target levels of mortality and serious injury, 
and it does not exclude any marine mammal stocks from consideration. 
The MMPA, however, contains no provisions to develop TRPs for non-
strategic stocks that are killed or seriously injured incidental to 
Category II fisheries. Thus, if a Category II fishery takes a non-
strategic stock at levels higher than insignificant and approaching a 
zero mortality and serious injury rate, the MMPA has no mechanism to 
further reduce such mortality and serious injury.
    The meaning of ZMRG under MMPA section 118 is not clear, and to 
implement provisions of the MMPA related to ZMRG, NMFS needs to define 
the level of mortality and serious injury that would be considered as 
insignificant levels approaching a zero rate. As described in NMFS' 
MMPA Bulletin (June/July 1995, p. 3) there were three major questions 
related to the ZMRG: (1) What does insignificant mean, (2) how close to 
zero do we need to approach, and (3) what rate should be used as the 
measurement?
    NMFS addressed the first question by proposing a rule that would 
provide that the ZMRG address the biological significance of the levels 
of incidental mortality and serious injury to marine mammal stocks. In 
addressing ``approaching a zero rate'', NMFS stated its intent to 
control incidental loss of marine mammals through regulation or 
restrictions on fisheries to the point where these losses are 
biologically insignificant to marine mammal stocks. However, NMFS would 
continue to work with the fishing industry to design, refine, and use 
technologies and methods that are more ``marine mammal friendly''. 
Thus, NMFS intended to incorporate ``approaching a zero rate'' through 
incentive and improvement of available technologies and methods after 
incidental mortality and serious injury are reduced to a point where 
they are biologically insignificant.
    Regarding the appropriate rate, NMFS noted that from 1988 though 
1994, the rate of incidental mortality that had been used in 
classifying fisheries was the number of takes by an individual vessel 
in a 20-day period. NMFS also considered an alternative rate as the 
number of marine mammals in a stock killed incidental to commercial 
fisheries in a year. Neither of these rates were directly related to 
biological significance. However, a rate that expresses annual fishery-
related mortality as a function of population size or productivity 
would address biological significance of the mortality.
    In 1995, NMFS proposed a rule (60 FR 31666, June 16, 1995) that, 
among other things, proposed a level of mortality that would have an 
insignificant impact on marine mammals stocks as 10 percent of any 
stock's PBR. That definition was removed from the final rule (60 FR 
45086, August 30, 1995), and since that time, NMFS has not promulgated 
final regulations to define ZMRG.
    In August 2002, several organizations filed suit against NMFS 
alleging that NMFS failed to meet requirements of MMPA section 118. 
These organizations and NMFS negotiated a settlement agreement that 
requires, among other things, for NMFS to define the ZMRG through 
regulations and to submit to Congress the report on fisheries' progress 
toward the ZMRG as required by MMPA section 118(b)(3).
    In an ANPR related to the ZMRG (68 FR 40888, July 9, 2003), NMFS 
described three options for defining an insignificance threshold (the 
maximum number of incidental mortalities or serious injuries that a 
population stock of marine mammals could sustain and be considered 
insignificant to the population), described 2 options for incorporating 
available technology and economic feasibility into the evaluation of a 
fishery relative to target mortality and serious injury levels, and 
solicited comments on these options or the identification of additional 
options related to the ZMRG. NMFS has considered comments received on 
the ANPR and is providing responses to these comments in this proposed 
rule.

Key Issues Related to the ZMRG

    Despite substantial attention in the legislative history of the 
MMPA, the ZMRG remains confusing in certain key areas. The following 
discussion presents some of these confusing points as questions and 
addresses each question.

What Is the ZMRG?

    The ZMRG is described in section 118(b) of the MMPA and includes 
provisions in other parts of the MMPA as well. In simple form, the ZMRG 
contains the following:
    (1) A target for reducing incidental mortality and serious injury 
and a deadline by which the target is to be achieved;
    (2) A statement that fisheries that have achieved the target shall 
not be required to further reduce incidental mortality and serious 
injury rates;
    (3) A requirement for submitting a report to Congress describing 
fisheries' progress toward the target and notes fisheries for which 
additional information is required to assess levels of incidental 
mortality and serious injury; and
    (4) A mechanism (the TRP process) to reduce levels of incidental 
mortality and serious injury in fisheries that have not met the target 
(within that mechanism, the economics of the fishery, availability of 
existing technology, and existing fishery management plans must be 
taken into account).
    In this document, NMFS proposes an insignificance threshold as the 
target level of mortality and serious injury for all stocks of marine 
mammals. The insignificance threshold for each stock is 10 percent of 
that stock's PBR unless the Assistant Administrator for Fisheries 
adjusts that value and provides a rationale for such an adjustment.
    In cases where total fishery mortality and serious injury exceed a 
stock's insignificance threshold, item (4) above directs NMFS to take 
appropriate action under the TRP process. TRPs apply to Category I and 
II fisheries and not to Category III fisheries. Therefore, Category III 
fisheries are not required to further reduce mortality and serious 
injury through the TRP process; however, NMFS intends to work with 
Category III fisheries through incentive and improved fishing 
technologies to reduce incidental morality and serious injury as 
resources allow (see response to comment 42).

What Is an Insignificant Level of Incidental Mortality and Serious 
Injury?

    In 1995 NMFS discussed various interpretations of the term 
``significant'' and proposed that ``insignificant'' within the ZMRG 
should relate to the biological significance of incidental mortality 
and serious injury to marine mammal stocks (MMPA Bulletin, June/July 
1995). An insignificant level of incidental mortality and serious 
injury is one that has an insignificant impact on any stock of marine 
mammals. Three options for such levels were described in the 2003 ANPR, 
and each of these could be defended as having an insignificant impact 
on marine mammal stocks.

Why Is the Deadline Important?

    The deadline emphasizes a date by which Congress intended for 
incidental mortality and serious injury to be reduced to insignificant 
levels approaching a zero rate and creates an expectation that all 
incidental mortality and serious injury will be sufficiently

[[Page 23480]]

reduced at some point in time. Prior to 1994, there was no specific 
deadline for achieving target levels of mortality and serious injury, 
and the ZMRG was more of a philosophy than a specific goal. That 
philosophy included the understanding that unnecessary deaths of marine 
mammals should be avoided, and, to the extent feasible, mortality and 
serious injury incidental to fishing operations should be eliminated. 
However, Congress was fairly clear in the legislative history of the 
MMPA that the available technology was insufficient to achieve the goal 
of eliminating incidental mortality and serious injury. Thus, the 
underlying philosophy of the ZMRG maintained that when new fishing 
practices or gear that would reduce mortality and serious injury became 
available, the fishing industry would adopt them. The deadline put an 
urgency on achieving an undefined goal and promoted confusion and 
frustration among a variety of constituents.

How Will Incidental Mortality and Serious Injury Levels Approach a Zero 
Rate?

    An important part of answering this question lies in the choice of 
an appropriate rate to measure. The number of incidental mortalities 
and serious injuries in a year is a rate with mortalities and serious 
injuries as the numerator and time (one year) as the denominator. If 
NMFS identified this rate as the appropriate measure for the ZMRG, then 
fisheries would have to reduce annual incidental mortality and serious 
injury to levels approaching zero. However, mortalities and serious 
injuries per year is not the only rate that could be incorporated into 
the ZMRG. For example, in implementing the provisions of MMPA section 
114, which were enacted in 1988, NMFS used a different mortality and 
serious injury rate for classifying fisheries. In its implementing 
regulations for MMPA section 114, NMFS defined frequent, occasional, 
and remote likelihood takings of marine mammals in terms of the number 
of marine mammals incidentally taken by an average fishing vessel in a 
20-day period. More than one take per 20-day period was considered 
frequent, about one take per 20-day period was considered occasional, 
and remote likelihood meant that it was highly unlikely that any marine 
mammal would be taken by a vessel in a 20-day period. Thus, from 1988 
through 1994, the pertinent rate was the number of marine mammals taken 
by a single fishing vessel in a 20-day period.
    In 1994 and 1995, when preparing regulations to implement section 
118 of the MMPA, NMFS rejected the previously used rates for 
classifying fisheries because they had no biological relevance. For 
example, a vessel in a small fishery (one with few participants or one 
that operated for a limited duration) could take several marine mammals 
from a large stock in a 20-day period, and that fishery would have 
little, if any, impact on the affected population. On the other hand, a 
large fishery could have a severe impact on a small population even if 
the per vessel take over a 20-day period was exceedingly small (i.e., 
approaching a zero rate). In its implementation of MMPA section 118, 
NMFS defined frequent, occasional, and remote likelihood in terms of 
marine mammal stocks' ability to sustain mortality (i.e., a function of 
the affected stock's PBR). Furthermore, NMFS proposed that an 
insignificant level of mortality and serious injury would be a small 
portion of the affected stock's PBR. Thus, since 1994, NMFS has 
considered the pertinent rate for the ZMRG to be the annual number of 
individuals in a stock of marine mammals killed or seriously injured 
incidental to commercial fishing per 1,000 animals in the affected 
stock.
    In the ANPR published in 2003 for the current proposed rule, NMFS 
described three options for insignificance thresholds that can be 
mathematically re-arranged to be the product of a stock's Nmin and a 
rate constant. Under the 3 options, the rate constants varied from 
0.0002 (10 percent of PBR for an endangered cetacean stock) to 0.006 
(10 percent of PBR of a pinniped stock within its OSP [Option 1] or 10 
percent delay in recovery of a pinniped stock [Option 2]). These 
options, therefore, define ``rate'' as the number of marine mammals 
incidentally killed or seriously injured by a fishery in a year as a 
function of the population size of the stock. Such ``rates'' are 
biologically relevant, and the result of each option is so small that 
it could be considered ``approaching a zero * * * rate''.

Would a Fishery Be Closed if It Missed the Target Mortality and Serious 
Injury Level by the Deadline?

    A fishery would not be closed under the ZMRG simply because its 
incidental mortality and serious injury rate was above the target level 
at the deadline. The ZMRG specifically states that if mortality is 
higher than target levels, then NMFS should take appropriate action 
under MMPA section 118(f), which provides for developing and 
implementing TRPs. The MMPA requires that the long-term goal of TRPs 
must consider available technology and the economics of the fishery.
    There is clearly a conflict within the MMPA because the statute has 
a very specific goal (reach the target by the deadline), and it does 
not specifically provide the consequences for a fishery not having 
reduced incidental mortality and serious injury to target levels by the 
deadline. However, the MMPA specifically states that the mechanism to 
reduce mortality and serious injury (the TRP process) must take into 
account technological and economic constraints in the long-term goal of 
TRPs, and NMFS must follow the TRP process under MMPA section 118(f) in 
regulating to reduce mortality and serious injury of marine mammals 
incidental to commercial fisheries.

Comments and Responses

    NMFS received 14 letters, each of which contained comments on 
various aspects of the ANPR. These letters are available for review 
(see Electronic Access). These letters contain a wide range of views on 
the meaning of the ZMRG and on fisheries' achievement of this goal. 
Comments addressed 5 major topics: (1) General aspects of the ZMRG and 
related concepts, (2) the options for insignificance threshold that 
were described in the ANPR, (3) the concept of ``approaching zero'', 
(4) incorporating economic feasibility and available technology, and 
(5) recommended alternatives other than the options included in the 
ANPR. A summary of these comments and NMFS' responses to them are 
grouped accordingly.

General Comments

    Comment 1: ZMRG is an unnecessary tool that distorts ecosystem-
based biological management by placing marine mammals above all other 
species. Indeed, a zero mortality policy is the equivalent of treating 
all marine mammals as if they have been listed under the Endangered 
Species Act (ESA), even if their populations are healthy and growing.
    Response: The ZMRG is a requirement under the MMPA, and, therefore, 
NMFS must implement it.
    Comment 2: There are consequences for other species that flow from 
managing the oceans to give marine mammals the first and highest 
priority. While no one supports or condones actions leading to marine 
mammal mortality and injury, ZMRG is an inappropriate management tool 
because it ignores the needs of other species in the ocean ecosystem. 
It also ignores the needs and interests of other ocean users. 
Certainly, the ZMRG objective of maintaining marine mammal

[[Page 23481]]

populations at or near their maximum population level in the ecosystem 
is important. So is providing food for people and jobs for workers. The 
commercial seafood industry deserves consideration as well.
    Response: As noted in the response to comment 1, the ZMRG is a part 
of the MMPA and must be implemented. The process to achieve target 
levels of incidental mortality and serious injury (i.e., TRPs) must 
consider available technology and the economics of fisheries, as well 
as state or regional fishery management plans. Therefore, the economics 
of the fishing industry are considered in the process for implementing 
the ZMRG as provided under the MMPA.
    Comment 3: The problem with ZMRG begins with the statutory formula 
for determining the PBR that can be allowed for a marine mammal 
species. To compute PBR, the minimum population is multiplied by 50 
percent of the maximum annual net reproductive rate. The resulting 
number is then reduced by a recovery factor of 0.1 for endangered 
species, 0.5 for threatened or status uncertain species, and 1.0 for 
others. The policy question is why scientists should not use the actual 
population level and reproduction rate supported by the data rather 
than the minimum population level and only half of the reproduction 
rate.
    Response: This comment describes a common misinterpretation of the 
elements used in calculating PBR, upon which the various options for 
identifying an insignificance threshold were based. The PBR equation as 
provided under the MMPA uses an estimate of the abundance of the 
affected stock, an estimate of its annual net production, and a 
recovery factor. The actual abundance of marine mammals in all stocks 
of marine mammals is unknown. NMFS must, therefore, use an estimate of 
that abundance. Each such estimate contains a statistical variance; 
therefore, each estimate contains uncertainty regarding the actual 
number of animals in the population. Use of the minimum population 
estimate (Nmin), which is usually a lower limit of a confidence 
interval about the estimate, provides reasonable assurance that there 
is at least the number of estimated individuals in the population as 
provided in the definition of ``minimum population estimate'' under 
MMPA section 3(27), 16 U.S.C. 1362(27).
    The productivity term in the PBR equation (one half the maximum 
theoretical or estimated net productivity rate of the stock at a small 
population size (Rmax)) apparently causes confusion as well. According 
to the logistic model, which is the underlying theory supporting the 
PBR approach, the per capita rate of increase is at its maximum when 
the population is very small relative to the carrying capacity. As the 
population grows, the per capita rate of increase decreases steadily 
until the population reaches its carrying capacity, at which time the 
population no longer grows.
    One half Rmax is the per capita rate of increase expected under the 
logistic model when the population is at an abundance that would yield 
the greatest net annual production. If the PBR equation used a rate of 
increase higher than one half Rmax, the resulting PBR may represent a 
level of mortality that is higher than a population could sustain, and 
repeated annual mortality at that level could cause the population to 
decline below its Optimum Sustainable Population level (OSP). Such a 
situation would be inconsistent with the definition of PBR under the 
MMPA and with the MMPA goal of maintaining marine mammal stocks within 
their OSP levels.
    Comment 4: The net result of the ZMRG is that marine mammal 
populations are maintained at 90 percent or more of the carrying 
capacity of the ecosystem. For no other ocean species is the management 
objective to return populations to their pristine level. This objective 
can only be achieved at the expense of other species, including 
endangered and threatened species. Equally important, this objective is 
achieved at the expense of providing food for the people of the country 
and the world because ZMRG will restrict commercial fishing even when 
there is no reasonable or foreseeable threat to healthy marine mammal 
populations.
    Response: The MMPA does not provide an objective of returning 
marine mammals to pristine levels. As provided in response to comment 
1, ZMRG is a requirement under the MMPA, and, therefore, NMFS is 
implementing it. The ZMRG applies only to mortality and serious injury 
incidental to commercial fishing operations; however, populations of 
marine mammals are affected by many other factors in their 
environments. If target levels of incidental mortality and serious 
injury were achieved, populations of marine mammals would not 
necessarily equilibrate at 90 percent or higher of their carrying 
capacities because other factors may limit population growth. 
Incidental mortality and serious injury by commercial fisheries below 
the insignificance threshold, however, would mean that fishing related 
mortality and serious injury are insignificant factors in the 
population trend of the affected marine mammal stock.
    Comment 5: A review of the origins of the ZMRG concept clearly 
demonstrates that any NMFS rule using ZMRG as a regulatory standard 
designed to return marine mammal populations to their pristine levels 
is contrary to Congressional intent.
    Response: Regulatory objectives do not include returning marine 
mammal populations to pristine levels. The ZMRG, however, expresses 
congressional intent that mortality and serious injury of marine 
mammals incidental to commercial fishing operations be reduced as low 
as feasible and termed such a level as an ``insignificant level 
approaching a zero mortality and serious injury rate''. A level of 
mortality and serious injury incidental to commercial fisheries that, 
by itself, would allow a population to equilibrate to a level within 90 
percent of its carrying capacity would be considered insignificant to 
the population.
    Comment 6: Section 118(f) of the MMPA notes that, while the long-
term goal of take reduction plans is to reduce incidental mortality and 
serious injury to insignificant levels approaching a zero mortality and 
serious injury rate, the plans also are to take into account the 
economics of the involved fisheries and the technological limitations 
for achieving the goal. That is, the ZMRG is not intractable but simply 
requires continued vigilance to reduce mortality and serious injury to 
the greatest extent possible, keeping in mind competing economic and 
technological factors.
    Response: This comment confuses the mechanism to reduce mortality 
and serious injury (TRPs) with the ZMRG. As noted in other parts of the 
preamble (see Background and What is the ZMRG?), a TRP is the mechanism 
by which incidental mortality and serious injury are to be reduced, and 
ZMRG is described in MMPA section 118(f) regarding the long-term goal 
of TRPs to include consideration of the economics of the fishery and 
available technology. NMFS does not negate those considerations in this 
proposed rule. Comments 57-64 and their respective responses also 
address technology and economics.
    Comment 7: We are disappointed to note that ``zero mortality'' for 
all fisheries was to have been met by April 30, 2001, through a 5-year 
Take Reduction Plan, a statutory requirement under the MMPA that was to 
have been implemented no later than 1996. We are

[[Page 23482]]

further disappointed to note that to this date there are still many 
fisheries without the required TRPs even established.
    Response: NMFS has developed and implemented TRPs and monitored the 
performance of fisheries under these TRPs to the maximum extent that 
resources allow. Congress anticipated that resources would limit the 
government's ability to implement all plans at once and in MMPA section 
118(f)(3) established priorities for developing and implementing TRPs. 
NMFS has used these priorities in determining which TRPs to develop and 
implement first.
    Comment 8: Despite the fact that NMFS is under the aegis of the 
Department of Commerce, it is still required by law to protect marine 
mammals, not conserve them because of their importance to the tuna 
fishing industry as long as such sustainable use is ``insignificant''.
    Response: Although the MMPA is designed to protect marine mammals, 
there are many provisions within the MMPA that allow the taking of 
marine mammals. MMPA section 118 and the provisions in that section 
related to ZMRG require NMFS, in developing and implementing TRPs, to 
consider the economics of affected fisheries.
    Comment 9: A restrictive definition of the ZMRG is biologically 
unnecessary. The three components of the PBR calculation are 
sufficiently conservative, even before consideration of the ZMRG.
    Response: Although a marine mammal population could be maintained 
within its OSP so long as human-caused mortality does not exceed PBR, 
the MMPA states that mortality and serious injury of marine mammals 
incidental to commercial fisheries shall be reduced to insignificant 
levels approaching a zero morality and serious injury rate. The 
legislative history of the ZMRG clearly expresses the ideal that any 
unnecessary mortality of marine mammals should be avoided if feasible. 
Furthermore, the MMPA specifically states that reducing mortality and 
serious injury to PBR levels is only the short-term goal of a TRP, and 
reducing mortality and serious injury to levels consistent with the 
ZMRG, taking into account listed factors, is the long-term goal of a 
TRP.
    Comment 10: The Pacific Scientific Review Group (SRG) has been 
urging NMFS to officially define ZMRG for four years with little 
response. The current rush to do so now appears to come only in 
response to litigation and has left little time to arrange for joint or 
individual meetings of the SRGs to discuss these options with 
scientists from NMFS. The recurring ``management by lawsuit'' 
operational style adopted by NMFS does not lend itself to well-reviewed 
scientific discussions.
    Response: The ZMRG is a major provision of MMPA section 118, and 
NMFS has implemented section 118 as completely and rapidly as possible. 
The current effort to define these terms was publicly initiated with 
the ANPR on July 9, 2003, and will be completed sometime in 2004. The 
various opportunities for public comment included in this process allow 
for ample discussions related to the definitions.
    Comment 11: The ANPR cited the opinion of the Center for Marine 
Conservation (now called the Ocean Conservancy) to justify continued 
kill of dolphins in the eastern tropical Pacific Ocean (ETP) and equate 
mortality below PBR levels as constituting ``zero mortality''. NMFS 
should not use the opinion of only one organization, and the reference 
is unacceptable and misleading.
    Response: This comment misinterprets the intent of the reference to 
the Center for Marine Conservation's testimony. There was no suggestion 
that any level of incidental mortality constituted ``zero mortality''. 
NMFS cited the opinion of the Center for Marine Conservation in its 
comparison of stock-specific dolphin mortality limits to the ZMRG. In 
its review of the hearing record for the International Dolphin 
Conservation Program Act (IDCPA), which established dolphin mortality 
limits, NMFS found only the Center's testimony making such a 
comparison. Therefore, the citation of only one opinion was 
appropriate.
    Comment 12: Little information related to accurate mortality 
estimates is available and much information is unreliable. Therefore, 
mortality limits based upon assumed levels of mortality are likely to 
fail to give adequate protection to marine mammals.
    Response: The evaluation of fisheries progress toward the ZMRG must 
be made according to the information available and is, therefore, 
subject to the limits of such information. MMPA section 118 also 
requires a report to Congress on fisheries progress toward the ZMRG, 
and that report will, by statutory direction, contain a section that 
identifies those commercial fisheries for which additional information 
is required to accurately assess the level of incidental mortality and 
serious injury of marine mammals in the fishery. Therefore, NMFS will 
identify cases in which data are inadequate to accurately assess the 
level of incidental mortality and serious injury of marine mammals.
    Comment 13: At the heart of the ZMRG process is the significant 
problem of lack of adequate data on which to base stock assessments. 
There is often no way of knowing how many animals there are in a given 
population, nor are we able to accurately determine the impact of 
mortalities in many fisheries. Because of a lack of resources, there 
are a number of fisheries about which we know little. For this reason, 
the take reduction teams have often found it difficult to adequately 
and accurately assess the success or failure of their proposed 
management regimes.
    Response: Adequate information upon which to base a TRP and to 
evaluate its success is a vital part of the regime to govern 
interactions between marine mammals and commercial fishing operations. 
NMFS places a high priority on collecting the data necessary to develop 
and implement TRPs and to evaluate their success. Unfortunately, the 
costs of such evaluation is high and limits NMFS' ability to develop 
and implement additional TRPs.
    Comment 14: While we feel that a zero mortality rate for any marine 
species is largely unrealistic and not achievable, we support the 
concept of the ZMRG, provided that the levels of incidental mortality 
and serious injury that may be established serve as goals and not 
compliance thresholds for mortality reduction.
    Response: The ZMRG has several elements, including a target level 
of mortality and serious injury and a statement that once a fishery has 
achieved target levels, no further reduction in mortality and serious 
injury rates is required. Therefore, the insignificance threshold 
serves as a goal, and it establishes a limit to reductions in 
incidental mortality and serious injury that would be required. This 
level of mortality and serious injury is also the long-term goal for 
TRPs, and the regulatory mechanisms to achieve this goal must take into 
account existing technologies and the economics of fisheries.
    Comment 15: The most explicit command regarding ZMRG is in MMPA 
section 118(b)(1), which states, ``Commercial fisheries shall reduce 
incidental mortality and serious injury of marine mammals to 
insignificant levels approaching a zero mortality and serious injury 
rate within 7 years after [April 30, 1994].'' Therefore, achieving such 
a level of mortality and serious injury is not an option; rather it is 
an unambiguous command of the statute, and such a command leaves no 
room for

[[Page 23483]]

consideration of the ``feasible economics'' of a given fishery.
    Response: Unfortunately, the phrase ``insignificant levels 
approaching a zero mortality and serious injury rate'' is not clear and 
unambiguous. Therefore, the purpose of this proposed rule is to clarify 
this phrase by quantifying such levels of mortality and serious injury. 
Further, there are three other commands, in section 118(b)(2-4). Once a 
fishery has achieved target levels of incidental mortality and serious 
injury, no further reduction is required; a report on fisheries' 
progress in reducing incidental morality and serious injury is 
required; and fisheries above target levels of incidental mortality and 
serious injury must be addressed through appropriate action in the TRP 
process under MMPA section 118(f). The consideration of feasible 
economics is directed toward the long-term goal of a TRP under MMPA 
section 118(f), which is the mechanism to reduce mortality and serious 
injury of marine mammals incidental to commercial fisheries.
    Comment 16: The ZMRG should be taken to mean the implementation of 
a precautionary approach to marine mammal management and that in taking 
action to protect marine mammal populations, any loss of, or potential 
harm to, such animals should be avoided. Any human-caused marine mammal 
mortality is undesirable and the ideal objective of any fisheries 
management plan should be to eliminate such loss.
    Response: Eliminating loss of marine mammals incidental to 
commercial fishing is an ideal objective. The legislative history of 
the MMPA is reasonably clear that achieving zero mortality and serious 
injury is not likely, but should remain the ideal objective.
    Insignificance Threshold
    Comment 17: Option 3, 0.1 percent of Nmin (cetaceans) and 0.3 
percent Nmin (pinnipeds), is an acceptable level by which cetacean and 
pinniped species should be managed. This is consistent with the 
established standard for an ETP dolphin insignificance threshold, which 
was defined by Congress.
    Response: Option 3 is consistent with the established standard for 
ETP dolphins under MMPA section 302, 16 U.S.C. 1412. However, other 
alternatives are also consistent with the intent of the MMPA in 
provisions under MMPA section 118, and NMFS is proposing an 
insignificance threshold as 10 percent of a stock's PBR.
    Comment 18: If NMFS decides to adopt a numerical goal for protected 
species, we recommend Option 2 (10 percent delay in recovery).
    Response: Among options in the ANPR, Option 2 would provide the 
highest numbers of marine mammals that would be considered as an 
insignificant level of morality and serious injury. However, it would 
establish an insignificance threshold for stocks of endangered species 
that is equal to the PBR for these stocks, which would be inconsistent 
with the two goals (short- and long-term) of TRPs included in the MMPA.
    Comment 19: Option 1 suggests that OSP should be 90 percent of 
carrying capacity for healthy stocks, 95 percent for status uncertain 
stocks, and 98 percent for endangered, threatened or depleted stocks. 
Option 2 suggests that OSP is 90 percent of carrying capacity, while 
Option 3 suggests OSP is 95 percent of carrying capacity. However, NMFS 
has already defined OSP as a range of population levels between 60 
percent and 100 percent of carrying capacity. It is inappropriate, 
unwise, and likely a violation of law to use this ANPR to redefine OSP 
only for commercial fishermen.
    Response: As noted in this comment, NMFS has used the range of 
population sizes from 60 percent of a stock's carrying capacity to the 
stock's carrying capacity as a marine mammal stock's OSP in evaluating 
whether a population stock of marine mammals is depleted under the 
MMPA. However, NMFS is not using this action to redefine OSP. The 
statements in the ANPR that marine mammal populations would reach 
levels of 90 percent to 98 percent of the stock's carrying capacity do 
not redefine carrying capacity. Rather, these statements indicate that 
mortality and serious injury of marine mammals incidental to commercial 
fisheries that did not exceed the insignificance thresholds under the 
three options would allow marine mammals to equilibrate within their 
OSP, near the carrying capacity, if other factors did not limit 
population growth.
    Comment 20: In 1995, NMFS proposed a rule in which a fishery would 
be deemed to have met the ZMRG if it, in combination with all other 
interacting fisheries, killed and/or seriously injured no more than 10 
percent of the PBR level of any stock. We supported this proposed 
definition. NMFS also proposed that in cases where incidental mortality 
and serious injury of all fisheries exceeded 10 percent of any stock's 
PBR, a single fishery would be deemed to have met the ZMRG if it was 
responsible for killing or seriously injuring less than one percent of 
the PBR for that particular marine mammal stock. We opposed this 
provision because if there were more than 10 interacting fisheries and 
each took 1 percent of the PBR, a stock could be unfairly and 
significantly disadvantaged over a stock with only a single interacting 
fishery. We are pleased to see that NMFS has not proposed this again as 
one of the options.
    Response: In 1995, the proposed rule contained a provision to 
address situations where more than one fishery caused mortality and 
serious injury of a marine mammal stock and where total fishery 
mortality for that stock exceeded 10 percent of the stock's PBR. In 
these cases, NMFS proposed that a fishery that killed or seriously 
injured no more than 1 percent of the stock's PBR would be consistent 
with the ZMRG. In 1995, there were no cases where more than 10 
fisheries killed or seriously injured a stock of marine mammals 
incidental to their operations. The ANPR did not address these same 
situations although there are cases where more than one fishery causes 
incidental mortality and serious injury of the same marine mammal 
stock, and incidental mortality and serious injury of that stock are 
above 10 percent of the stock's PBR. This proposed contains no 
provision to address this situation because none is needed (see related 
discussion under the headings ``What Is the ZMRG'' and ``The Proposed 
Rule'').
    Comment 21: In all of its annual stock assessments since 1995, NMFS 
has used 10 percent of PBR as one of the measures for assessing the 
status of stocks. NMFS provides no justification in the current ANPR 
that suggests that this de facto definition was no longer considered 
scientifically justifiable or unfeasible. There is no apparent need for 
a new interpretation of the definition.
    Response: NMFS is proposing to use 10 percent of PBR as the 
insignificance threshold in part to avoid confusion that would result 
by changing from its use in SARs since 1995.
    Comment 22: Option 1 is generally the most protective of endangered 
stocks. As stock abundance increases, Options 1 and 3 begin to equalize 
and finally end with Option 3 being the most protective of abundant 
stocks. NMFS should afford priority to protecting vulnerable stocks in 
its choice of definitions for the ZMRG. For this reason alone, Option 1 
is the preferable option to assure adherence to the intent of the MMPA.
    Response: NMFS proposes to use Option 1 as the insignificance 
threshold.
    Comment 23: Option 1 is simple to calculate for each stock. 
Furthermore, it is scientifically justifiable.

[[Page 23484]]

    Response: NMFS is proposing Option 1 as the insignificance 
threshold.
    Comment 24: In a report of a joint meeting of SRGs in 1999, it was 
noted that 0.1 percent of a stock's Nmin (which is the formula for 
calculating long-term dolphin mortality limits for the purse seine 
fishery for yellow-fin tuna in the Eastern Tropical Pacific Ocean) 
yielded similar results to 10 percent of a stock's PBR. One might 
expect that scientists who can analogize the essential results of what 
are now being called Options 1 and 3 could justify either. Thus, either 
has scientific merit.
    Response: Options 1 and 3 yield similar results for cetacean stocks 
of unknown, depleted, or threatened status, and NMFS has used default 
values in calculating the PBR.
    Comment 25: For the majority of stocks, the objective of avoiding 
significant population-level effects is likely met by reducing 
mortality and serious injury to a point below PBR for each marine 
mammal stock, particularly those that are not depleted, threatened, or 
endangered.
    Response: Annual human-caused mortality remaining below PBR would 
not prohibit a stock from reaching OSP nor cause it to be reduced below 
its OSP. The short-term goal of TRPs addresses this point; however, 
under MMPA section 118(f), TRPs have a long-term goal to reduce 
incidental mortality to insignificant levels approaching a zero 
mortality and serious injury rate.
    Comment 26: In the case of some endangered species, for example 
Hawaiian monk seals, mortality and serious injury at the PBR level 
could still have significant population effects. The PBR for monk seals 
is about five animals, and the removal by incidental mortality and 
serious injury of five adult females, particularly those near the peak 
of their reproductive potential, annually could have grave consequences 
for individual reproductive colonies.
    Response: NMFS is aware of the limits of the logistic model and its 
application to small, declining populations, such as Hawaiian monk 
seals. Thus, rather than apply a simple mathematical formula to monk 
seals, NMFS may adjust the insignificance threshold based on the 
circumstances. In such a case, NMFS would explain its departure from 
the simple mathematical approach.
    Comment 27: Relatively small levels of fisheries-related mortality 
and serious injury also take on added significance when considered in 
combination with other factors that may be affecting a stock.
    Response: NMFS proposes to use an adjustment, generally a 
reduction, of insignificance thresholds to address such situations as 
needed.
    Comment 28: The options in NMFS' ANPR can be evaluated under the 
following considerations: (1) Do the options take advantage of the 
information available on the species or stock involved, (2) are they 
relatively simple or straightforward to implement, and (3) are they 
suitably protective and consistent with the statutory mandate? Option 1 
would use all the information currently available for the PBR process, 
but options 2 and 3 may not use all such information, particularly 
where estimated, rather than default, values for population growth were 
used in calculating PBR. All three options appear to be relatively easy 
to implement. However, only Option 1 would increase the level of 
protection provided as a stock's status worsens. Because PBR may not 
provide adequate protection for endangered stocks, increasing the level 
of protection as a stock declines seems prudent and precautionary.
    Response: NMFS agrees that all three options would be easy to 
implement and that Options 2 and 3 do not necessarily use all available 
data in those few cases where estimated, rather than default, values 
for population growth are used in the PBR calculation. NMFS also agrees 
that Option 1 would provide the greatest level of protection for 
endangered stocks; therefore, NMFS is proposing Option 1 as the 
insignificance threshold.
    Comment 29: From a biological perspective, the ZMRG is in some 
aspects similar to the negligible impact standard, each standard 
striving to have insignificant levels of mortality.
    Response: NMFS agrees.
    Comment 30: We disagree with the statement that the use of 10 
percent of PBR in a final rule could result in the over-regulation of 
some fisheries and the assertion that the use of Option 1 could result 
in the over-regulation of some fisheries.
    Response: The MMPA states that a TRP, which is the mechanism for 
reducing mortality incidental to commercial fishing, must take into 
account available technology and the economics of fisheries under the 
long-term goal. NMFS recognizes these considerations in developing and 
implementing TRPs. Consequently, the potential for over-regulation is 
diminished.
    Comment 31: While Option 2 would likely maintain populations at or 
above 90 percent of the carrying capacity, it would not adequately 
protect threatened and endangered stocks.
    Response: Option 2 would not be consistent with section 118(f)(2) 
(see comment 32 and response); therefore, NMFS is not proposing to use 
it.
    Comment 32: Option 2 would allow the ZMRG to be achieved when 
incidental mortality was equal to the PBR for endangered species. 
Therefore, this option is inconsistent with the requirement in section 
118(f)(2) of the MMPA for a short-term goal of reducing incidental 
mortality and serious injury to levels less than PBR and a long-term 
goal of insignificant levels approaching a zero mortality and serious 
injury rate.
    Response: NMFS agrees with this comment and is not proposing to use 
Option 2.
    Comment 33: We disagree with the assertion that Option 3 may be too 
restrictive for stocks at their OSP level by setting the insignificance 
threshold for such stocks at 5 percent of their PBR level. Stocks must 
be maintained within their OSP and to do that, the actual mortality and 
serious injury should be as small as possible. The insignificance 
threshold should never be the basis to undermine the ZMRG by allowing 
large numbers of marine mammals to be killed or seriously injured 
merely because their populations have reached their OSP or carrying 
capacity.
    Response: Options 1 and 2 would result in an insignificance 
threshold for stocks within their OSP that is double the number that 
would result from the application of Option 3; therefore, some 
constituents may perceive Option 3 as overly restrictive for these 
stocks compared to Options 1 and 2. However, NMFS is proposing Option 1 
as the insignificance threshold, which is consistent with NMFS' long-
held interpretation that the phrase, ``insignificant levels'', relates 
to the impact of incidental mortality and serious injury on the 
affected stocks of marine mammals. Identifying the insignificance 
threshold as 10 percent of PBR recognizes that an insignificant level 
of mortality and serious injury would be a small fraction (e.g., 10 
percent or less) of the human-caused mortality and serious injury that 
the population of marine mammals could sustain. Thus, mortality and 
serious injury below the insignificance threshold of each stock would 
be consistent with the ZMRG target levels of mortality and serious 
injury, which are insignificant levels approaching a zero mortality and 
serious injury rate.
    Comment 34: We generally support Options 1 and 2 and generally 
oppose Option 3. Despite the advantage of making U.S. management policy

[[Page 23485]]

consistent with an international agreement, it is more important that 
the definition be internally consistent with the MMPA.
    Response: NMFS proposes to use Option 1 for the insignificance 
threshold. The comment regarding consistency with an international 
agreement and being internally consistent with the MMPA relates to 
Option 3, and NMFS is not proposing that option.
    Comment 35: We recommend Option 1 because it has a direct link to 
PBR. However, we are concerned that this option may result in greater 
precautions than necessary for protection of some endangered species. 
Therefore, we recommend that this option contain a provision similar to 
that in Option 2 where the insignificance threshold equals PBR for 
endangered species.
    Response: Although Option 1 may result in a small number for the 
insignificance threshold for endangered species, the recommendation 
offered by the commentor is inconsistent with the requirement for 
short- and long-term goals of TRPs and is not proposed.
    Comment 36: Option 1 is the preferable option for defining an 
insignificance threshold as it is the only option that is compatible 
with various other statutory and regulatory provisions of the MMPA; it 
is familiar to NMFS' constituents as it is the same as the proposed 
definition of ZMRG in the initial rulemaking to implement the 1994 
amendments; it is the current de facto definition of ZMRG used in the 
SARs; it is tied to the statutory defined role of PBR; and with its 
use, it is easy to measure the effectiveness of a TRP (once PBR has 
been reached, an additional 10 percent reduction for each successive 
six months would meet the long-term goal of the TRP).
    Response: Option 1 has many strengths as provided in this comment, 
and NMFS is proposing to use this option based in part on these 
strengths. The last statement of this comment (once PBR has been 
reached, an additional 10 percent reduction for each successive six 
months would meet the long-term goal of the TRP) results in an easily 
understood approach; however, data to verify such a step-wise reduction 
would not likely be available due to sampling constraints.
    Comment 37: NMFS claims that a downside of Option 1 is that it 
leads to ``overly conservative levels of protection for certain 
endangered species''. This is hardly a downside. NMFS is obligated to 
conserve endangered species, and the Supreme court admonished that 
endangered species are to be afforded the ``highest of priorities''. 
Therefore, an endangered species can never be deemed to have too much 
protection.
    Response: NMFS proposes to use Option 1 as the insignificance 
threshold.
    Comment 38: By defining the insignificance threshold as a function 
of PBR, Option 1 builds in the distinction between endangered, 
threatened, declining, stable, or increasing stocks that the variable 
recovery factor in the PBR reflects. Options 2 and 3 improperly and 
illegally nullify the distinction the MMPA creates in the treatment of 
stocks of different status.
    Response: NMFS is proposing Option 1 as the insignificance 
threshold.
    Comment 39: Option 2 is illegal in that it renders portions of 
section 118(f) superfluous. Under Option 2, the insignificance 
threshold for endangered species is the same as PBR for those 
endangered species for which the default value of 0.1 is used as the 
recovery factor. Therefore, the short-term goal and the long-term goal 
of TRPs are the same, and the last 4 1/2 years of the TRP are 
meaningless.
    Response: Option 2 is inconsistent with the provisions of MMPA 
section 118(f)(2) in the case of endangered marine mammals, and NMFS is 
not proposing to use it.
    Comment 40: We are opposed to Option 2 as a definition for ZMRG 
because ZMRG for threatened and endangered species could be set at the 
same level as PBR. Option 1 provides the most precautionary of the 
three proposed approaches to marine mammal conservation.
    Response: The insignificance threshold under Option 2 would be the 
same as PBR for endangered species, and NMFS is not proposing to use 
it. Option 1 is the most precautionary for endangered species.
    Comment 41: We are best able to support Option 2 (10 percent delay 
in recovery) and request that flexibility be provided for amending the 
definition for categorization of fisheries. If flexibility is not 
provided, then a great number of Alaska's fisheries could be improperly 
categorized.
    Response: NMFS is not proposing to use Option 2 because it would be 
inconsistent with MMPA section 118(f)(2) for endangered species.

Approaching Zero

    Comment 42: The only option of the three that NMFS is considering 
for defining ``insignificant levels'' that is compatible with the MMPA, 
as well as the ESA, is Option 1 which sets the insignificance threshold 
as 10 percent of PBR. Although this may be an appropriate definition 
for ``insignificant levels'', it is not the same as ZMRG. A complete 
definition of ZMRG must also incorporate the ``approaching zero'' 
language of the statute.
    Response: NMFS proposes to define the insignificance threshold as 
the upper limit of annual incidental mortality and serious injury of 
marine mammal stocks that can be considered insignificant levels 
approaching a zero mortality and serious injury rate and proposes to 
use Option 1 to quantify that upper limit. This quantified, stock-
specific level of mortality and serious injury is relatively easy to 
calculate, is based on information available in the SARs, and is based 
on the formula that NMFS currently uses to implement this statutory 
phrase for purposes of the SARs. Therefore, this quantified, stock-
specific level should provide commercial fishing operations with an 
easily understandable level of mortality and serious injury as a target 
to provide incentive to improve fishing technology and practices to 
reduce incidental mortality and serious injury and provide an effective 
means to meet the ZMRG of the MMPA. In addition, NMFS would continue to 
work with the fishing industry through incentive and improvement of 
available technologies and methods even after incidental mortality and 
serious injury in any particular fishery is reduced to a point that is 
biologically insignificant.
    This and other comments request that NMFS define two separate 
levels: a population-based insignificance level and then a different 
level to ensure that the interactions are ``approaching zero'' 
regardless of the overall impacts on the populations. These comments 
misread the statute. The statutory requirement is that commercial 
fisheries reduce mortalities to a single level: the ``insignificant 
level.'' The phrase ``approaching a zero mortality and serious injury 
rate'' modifies the term ``insignificant level.'' The ``approaching 
zero'' language does not create a stand-alone independent second 
criterion. NMFS proposes to effectuate this provision by adopting a 
single definition for the insignificant level rather than two separate 
definitions as suggested by these comments. NMFS has determined that 10 
percent of the PBR is an insignificant level because it is a level 
approaching a zero mortality and serious injury rate which will not 
have effects at a population level. The upper limits range from 2 
animals per 10,000 animals in the population stock for endangered 
whales to 6 animals per 1,000 animals for robust pinneped stocks. These 
levels ``approach zero.'' See ``How Will Incidental Mortality and 
Serious Injury Levels Approach A Zero Rate?''

[[Page 23486]]

    Comment 43: Under any of the options, including Option 1, 
interactions (and thus mortalities) can continue to increase as marine 
mammal populations grow, while still being considered to meet the 
definition of the ZMRG. This would seem counter to the intent specified 
in the MMPA that rates be ``reduced to insignificant levels approaching 
zero mortality and serious injury.'' While we do not believe that the 
Congress intended this to mean that the death rate must be absolutely 
zero, we do believe that the language in the MMPA indicates that this 
is not a static concept, but is intended to ensure that mortality is 
always reduced to its lowest feasible level.
    Response: The ZMRG is not a static concept, and its goal is to 
reduce incidental mortality and serious injury of marine mammals to the 
lowest feasible level. NMFS realizes that the number of deaths of 
marine mammals incidental to commercial fishing could increase as 
numbers of marine mammals increase. As long as the mortality and 
serious injury rate (as a function of population size) decreased, an 
increase in the number of marine mammal deaths per year would still be 
consistent with the MMPA's goal of ``approaching a zero mortality and 
serious injury rate.'' A rate based upon mortality and serious injury 
per 1,000 animals in the population addresses the impact of the 
mortality and serious injury on the affected stock of marine mammals 
and, in that sense, is biologically relevant. Therefore, NMFS is using 
a rate based upon population size or annual production (which is a 
function of population size) within the ZMRG. In addition, see response 
to comment 42 for additional reasons why NMFS proposes to use a 
quantifiable rate.
    Comment 44: The MMPA requires not just ``insignificant levels'' of 
mortality and serious injury to marine mammal stocks, but also that 
such takes be at rates ``approaching zero''. Nowhere in the ANPR does 
NMFS attempt to include the ``approaching zero'' requirement into any 
of the proposed definitions of ZMRG. As such, each of the proposed 
definitions is inadequate as a matter of law.
    Response: Although the ANPR contained only a description of options 
for ``insignificant levels'', this proposed rule addresses 
``approaching a zero...rate'' by defining the insignificance threshold 
as the upper limit of annual incidental mortality and serious injury of 
marine mammal stocks that can be considered insignificant levels 
approaching a zero mortality and serious injury rate. In addition, see 
response to comment 42.
    Comment 45: If the significance thresholds for each stock of marine 
mammals were summed, the total for pinnipeds alone would be in the 
thousands. These numbers would surely shock an American public who 
wishes to see marine mammal deaths minimized, and would not consider 
the deaths of thousands of marine mammals each year in the U.S. to be 
``insignificant''.
    Response: Although the sum of the insignificance thresholds for all 
pinnipeds would be a large number, mortality and serious injury below 
the proposed threshold would not have a significant effect on any stock 
of marine mammals, and mortality and serious injury limited to the 
insignificance threshold would be insignificant and approaching a zero 
rate (when the ``rate'' being considered is mortality and serious 
injury as a function of population size or annual production). In 
addition, see response to comment 42.
    Comment 46: Mortalities may rise with increases in population 
abundance of marine mammals; therefore, NMFS needs to develop a 
mechanism for either capping mortality at current ZMRG levels or 
``ratcheting'' fisheries to lower levels that can be put in place as 
marine mammal stocks increase. This would prevent death rates from 
increasing even higher as marine mammal stocks finally begin to 
recover.
    Response: The suggestion to ratchet allowable mortality levels 
downward in the future is one option to approach a zero mortality and 
serious injury rate; however, such an approach would conflict with the 
MMPA's requirement that once target levels of mortality and serious 
injury have been achieved, fisheries are not required to further reduce 
mortality and serious injury. The MMPA does not specify what ``rate'' 
should approach zero, and NMFS stated in 1995 and continues to maintain 
that the ZMRG should be based primarily on the significance of 
incidental mortality and serious injury to the affected stock.
    Comment 47: The ZMRG has two key elements. First, it requires that 
incidental mortality and serious injury levels be reduced to the point 
that they are insignificant. Our interpretation is that such 
insignificance is to be gauged by looking at population-level effects. 
Second, as an additional element, the ZMRG requires that the rate of 
incidental mortality and serious injury approach zero. We believe this 
second element was intended to compel the technological advancement of 
fisheries to the greatest extent practicable to avoid any death or 
serious injury of individual marine mammals.
    Response: Insignificant levels may best be gauged by looking at 
population effects of incidental mortality and serious injury rates. 
Mortality and serious injury rates based upon population size or annual 
production are biologically relevant, and the result of Option 1 for 
all stocks is a rate that is biologically insignificant and so small as 
to be approaching a zero rate. Calculation of the insignificance 
threshold under Option 1 results in rates ranging from 6 per 1,000 for 
robust stocks of pinnipeds to 2 per 10,000 for endangered cetaceans, 
and these rates are so small as to approach a zero rate. In addition, 
see response to comment 42 for additional reasons why NMFS proposes to 
use such a quantifiable rate.
    Comment 48: Congress clearly intended to set a goal that goes 
beyond the protection of populations. The drafters of the legislation 
also intended to compel fishermen to avoid or minimize, to the extent 
technologically and economically feasible, the number of individual 
marine mammals killed or seriously injured. Therefore, even when 
removals from a stock incidental to commercial fishing operations can 
be tolerated at the population level, everything that is 
technologically and economically feasible to be done to reduce the 
mortality and serious injury of individual marine mammals to the lowest 
level practicable should be done.
    Response: Once incidental mortality and serious injury has been 
reduced to insignificance thresholds for all stocks of marine mammals, 
continued reduction of incidental mortality and serious injury may be 
accomplished through incentive and working with the fishing industry to 
improve available technologies and methods, which is similar to the 
approach described for eliminating dolphin mortality in the ETP (see 
MMPA section 302(8); 16 U.S.C. 1412(8)).
    Comment 49: The three proposed options to achieve ``zero 
mortality'' are insufficient, unacceptable, and, in at least two 
instances (Options 2 and 3) in direct conflict with the MMPA. We are 
especially concerned that the ANPR makes no attempt to include the 
language ``approaching zero'' in any of these options.
    Response: ``Approaching a zero...rate'' is addressed in this 
proposed rule as described in responses to comments 42 and 44 and to 
other comments under the heading ``Approaching Zero''.
    Comment 50: NMFS claims that one of the pros of Option 3 is that it 
is consistent with the ETP dolphin standard which is an 
``insignificant'' metric specifically defined by Congress. This 
statement may be true; however,

[[Page 23487]]

stock-specific mortality limits are but one limit, and, given the goal 
of eliminating mortality, Congress never intended this limit to be the 
endpoint.
    Response: NMFS is aware that the MMPA contains the goal of 
eliminating mortality incidental to purse seine fisheries for yellow-
fin tuna in the ETP. There is, however, no required mechanism to 
achieve this goal; furthermore, the MMPA states that an International 
Dolphin Conservation Program should be established requiring, among 
other things, provisions for a system of incentives to vessel captains 
to continue to reduce dolphin mortality, with the goal of eliminating 
dolphin morality. The MMPA does not require a regulatory approach to 
eliminate mortality once incidental mortality is reduced below stock-
specific, quantifiable dolphin mortality limits.
    Comment 51: Congress clearly intended that the ``zero mortality 
rate'' of marine mammals be zero, as in no marine mammals.
    Response: Congressional intent related to regulation of fisheries 
under the ZMRG is not clear. The divergence of opinions expressed in 
the comments to the ANPR for this proposed rule illustrates the lack of 
clarity of the intent of the ZMRG. However, the plain language of the 
statute relating to ZMRG provides that the incidental mortality and 
serious injury of marine mammals by commercial fisheries shall be 
reduced to ``insignificant levels approaching a zero mortality and 
serious injury rate'' (emphasis added); it does not provide ``zero 
mortality rate'' or ``zero marine mammals''. Furthermore, MMPA section 
118(f) requires that TRPs take into account the economics of fisheries, 
available technologies, and existing state and regional fishery 
management plans, and this requirement indicates some flexibility in 
achieving the long-term goal of TRPs.
    Comment 52: NMFS is required to take economics and available 
technologies into account in figuring out how to reduce mortality and 
serious injury to insignificant levels, but NMFS cannot use these 
factors as an excuse not to reach such levels.
    Response: The MMPA provides that TRPs are the mechanism to reduce 
mortality and serious injury of marine mammals under the ZMRG (see MMPA 
section 118(b)(4)). The MMPA also states that, in developing and 
implementing TRPs, NMFS must take into account the economics of the 
affected fisheries, available technology, and existing fishery 
management plans (see MMPA section 118(f)(2)) when developing and 
implementing measures to achieve the long-term goal for reducing 
incidental mortality and serious injury to insignificant levels 
approaching a zero mortality and serious injury rate.
    Comment 53: The MMPA requires not just ``insignificant levels'' of 
mortality and serious injury to marine mammal stocks, but also that 
such takes be at rates ``approaching zero''. Nowhere in the ANPR does 
NMFS attempt to include the ``approaching zero'' requirement into any 
of the proposed definitions of ZMRG. As such, each of the proposed 
definitions is inadequate as a matter of law.
    Response: The ANPR described certain options that NMFS was 
considering related to the ZMRG and solicited comments related to these 
options or to identify new options. There were no proposed definitions 
in the ANPR. This proposed rule, however, addresses ``approaching a 
zero...rate'' as described in responses to comments 42, 44, and other 
comments under the heading ``Approaching Zero''.
    Comment 54: The ``insignificant levels'' prong of the ZMRG may be 
interpreted as protecting marine mammal populations, while the 
``approaching zero'' prong is read as protecting individual marine 
mammals by reducing mortality and serious injury to the lowest possible 
levels.
    Response: See responses to comment 42, 48 and other comments under 
the heading ``Approaching Zero''. In addition, in developing and 
implementing TRPs to achieve the long-term goal of a TRP, NMFS must 
take into account economics of fisheries, available technologies, and 
existing fishery management plans.
    Comment 55: Option 3 for the Insignificance threshold would be 
consistent with the ETP dolphin standard, which is an insignificant 
metric specifically designed by Congress. The current ETP standard 
actually goes beyond the attainment of an insignificance threshold and 
calls for the participating nations taking yellow fin tuna in the ETP 
to reduce dolphin mortality limits progressively to a level approaching 
zero through the setting of annual limits, with the goal of eliminating 
dolphin mortality in that fishery.
    Response: NMFS proposes to use Option 1, not Option 3, for the 
insignificance threshold for purposes of MMPA section 118. In addition, 
see response to other comments under the heading ``Approaching Zero''.
    Comment 56: The ZMRG should serve as a mechanism that fosters the 
development of technologies or gear modifications that will allow 
further reduction in mortality. The fisheries industry has proven to be 
extremely creative in the face of such challenges and will likely 
develop such methods or gears in both a cost-effective and timely 
manner.
    Response: NMFS agrees. See response to comment 42.
    Technology and Economics
    Comment 57: The insignificance threshold is the driving mechanism 
to reduce mortality and serious injury and the incentive for fishermen 
and scientists to devise economically feasible technologies to meet 
this objective. We believe NMFS' option to incorporate available 
technology and economic feasibility into an initial assessment of 
whether fisheries had achieved the ZMRG by the statutory date is flawed 
and contrary to Congressional intent and court findings.
    Response: NMFS is not proposing consideration of technology and 
economics as part of the insignificance threshold. However, it will be 
necessary to take technology and economic feasibility into account in 
developing and implementing TRPs to reduce mortality and serious injury 
toward the insignificance threshold.
    Comment 58: Although Congress sought to encourage the development 
of new technology to reduce incidental interactions with marine 
mammals, it was always clear that ZMRG was satisfied by the use of the 
best available technology that was technologically and economically 
feasible to employ.
    Response: When Congress amended the meaning of ZMRG in 1981, the 
House committee recognized that other fisheries (citing the foreign 
high seas salmon gillnet fishery as an example) had not developed new 
techniques and equipment for reducing incidental mortality and serious 
injury. Therefore, the goal in MMPA section 101(a)(2) would remain 
unchanged for commercial fisheries other than the purse-seine fishery 
for yellow-fin tuna in the ETP ``to stimulate new technology for 
reducing the incidental taking of marine mammals.'' (H. R Rep. No. 97-
228 at 17-18 (1981)). The goal in MMPA section 101(a)(2) is essentially 
reiterated in MMPA section 118(b), and section 118(b) does not include 
any language regarding consideration of technological or economic 
feasibility. Under MMPA section 118(f), to reduce mortality and serious 
injury of marine mammals to insignificant levels approaching a zero 
mortality and serious injury rate, TRPs must take into account 
economics of the fisheries, available technology, and existing fishery 
management plans.

[[Page 23488]]

    Comment 59: NMFS requested comment on whether fisheries should be 
considered to have met the ZMRG if they are below PBR but simply have 
no other methodologies available to reduce mortality and serious injury 
to lower levels such as the ZMRG level. The ZMRG stands as an incentive 
to develop further methods of achieving the ultimate desire of the 
American people that marine mammal mortality and serious injury be 
truly incidental and unavoidable.
    Response: See response to comment 58.
    Comment 60: Related to the question of whether or not a fishery 
should be determined to have satisfied the ZMRG if incidental mortality 
and serious injury exceeded a stock's insignificance threshold but 
suitable technological solutions were not available, stating that a 
fishery had met the ZMRG simply because of apparent technological 
difficulties would effectively change the standard to suit the 
situation, which seems contrary to the long-term goal of achieving a 
zero mortality and serious injury rate.
    Response: Such a fishery would not have achieved target levels of 
incidental mortality and serious injury as described in the ZMRG. 
However, as noted in other responses, the MMPA requires that NMFS 
consider economic feasibility and available technology when developing 
and implementing plans to reduce mortality and serious injury of marine 
mammals incidental to commercial fishing.
    Comment 61: We strongly disagree with any attempt by NMFS to 
consider the ``feasible economics'' of any fishery when determining 
whether that fishery has reached ZMRG. This is not an option under the 
MMPA.
    Response: Although such considerations are not included in 
determining whether a fishery has reduced mortality and serious injury 
to insignificant levels approaching a zero mortality and serious injury 
rate under MMPA section 118(b), such considerations are mandatory in 
developing and implementing TRPs to reduce incidental mortality and 
serious injury of marine mammals to the long term goal of TRPs under 
MMPA section 118(f).
    Comment 62: The proposed application of the ZMRG is inconsistent 
with the original intent of the statute and must be linked to available 
technology. In testimony (April 6, 2000) before the House Subcommittee 
on Fisheries Conservation, Wildlife and Oceans, NMFS openly recognized 
the nexus between the absence of critical gear research and technology 
and the ability to achieve the ZMRG. Sadly, little has been 
accomplished to date to reverse this situation as take reduction teams 
continue to struggle with limited information on stock status, gear 
technology, and innovation. Implementing a restrictive ZMRG definition 
in the absence of available technology will prevent the process from 
moving forward in a constructive common sense manner.
    Response: As provided in response to comment 13, NMFS places a high 
priority on collecting the data necessary to develop and implement 
TRPs. Unfortunately, available resources are insufficient to provide 
more complete information on stock status, gear technology, and 
innovation, and TRPs must be developed on the basis of the available 
information. NMFS will continue to work with the fishing industry to 
improve available technology and methods within and outside of the TRP 
process.
    Comment 63: The IDCPA not only established an overall dolphin 
mortality limit, it also set (as of 2001) stock-specific dolphin 
mortality limits. These limits were put into place, and became binding, 
irrespective of the current state of technological development. Thus, 
in the enactment of the IDCPA, Congress distanced itself from a 
definition of ZMRG that was solely equated with technological advances. 
Congressional intent was rather that the establishment of quantifiable 
mortality limits that approached biologically insignificant levels were 
to be viewed as both a mechanism and an incentive to encourage 
commercial fisheries to further reduce marine mammal mortality in order 
to move toward an ultimate goal of eliminating mortality.
    Response: NMFS proposes a stock-specific, quantifiable 
insignificance threshold in part as an incentive to encourage 
commercial fisheries to further reduce mortality and serious injury of 
marine mammals. Thus, the proposed rule to implement the ZMRG as 
described in MMPA section 118 is similar to the IDCPA, which 
established stock-specific dolphin mortality limits as an incentive to 
further reduce incidental mortality and serious injury of dolphins 
incidental to the purse seine fishery for yellowfin tuna in the ETP.
    Comment 64: We support incorporating available technology and 
economic feasibility into an initial assessment of whether or not 
fisheries have achieved the ZMRG by the statutory due date as long as 
it is measurable and defined.
    Response: As noted above, the assessment of whether or not 
fisheries have reduced incidental mortality and serious injury to 
insignificant levels approaching a zero mortality and serious injury 
rate is independent of available technology and economic feasibility. 
These factors, however, must be taken into account in developing TRPs 
to reduce incidental mortality and serious injury once it has been 
reduced to levels below PBR.

Alternative Approaches

    Comment 65: ZMRG should be defined using PBR and a technology 
standard for species that are not endangered, threatened or depleted. 
Although applying PBR without any further ZMRG reduction will allow 
species which are endangered, threatened, or depleted to reach OSP, it 
may be appropriate to consider a more restrictive numerical standard in 
order to hasten the achievement of that goal.
    Response: The ZMRG does not contain a provision for a technology 
standard to be included in an assessment of whether commercial 
fisheries have achieved insignificant levels of incidental mortality 
and serious injury approaching a zero rate. In addition, the ZMRG is a 
goal for reducing mortality and serious injury levels even below PBR as 
is illustrated by short-term and long-term goals for TRPs.
    Comment 66: NMFS should adopt a modified version of Option 1 as the 
most appropriate mechanism for determining when a fishery has met the 
ZMRG. Option 1 should be modified by adding a second component that 
compels further reductions in mortality and serious injury for those 
stocks with high PBR levels. NMFS should determine that a fishery has 
met the ZMRG only if it results in a level of mortality and serious 
injury below the threshold established for that goal.
    Response: NMFS is proposing Option 1 as the definition of the 
insignificance threshold. However, NMFS is not proposing a regulatory 
mechanism to reduce incidental mortality and serious injury to levels 
below the insignificance threshold for stocks of marine mammals. The 
ideal of eliminating mortality and serious injury, once insignificance 
thresholds have been achieved, may be accomplished through incentive 
rather than regulation. See response to comment 42 and other comments 
and responses under the ``Approaching Zero'' heading.
    Comment 67: We oppose all three options proposed by NMFS and 
recommended an alternative consisting of the following elements:
    (1) ZMRG = PBR;
    (2) the ZMRG should not apply to robust stocks, stocks that are 
severely

[[Page 23489]]

endangered (i.e., PBR <=5 individuals), or stocks not under an MMPA 
management program;
    (3) the application of ZMRG should be prioritized by the Secretary 
for stocks that have a small populations size, those that are declining 
most rapidly, and those whose level of incidental mortality and serious 
injury has not dropped significantly within 5 years of TRP 
implementation;
    (4) the ZMRG definition must incorporate available technology and 
economic feasibility;
    (5) the Secretary, working cooperatively with the appropriate take 
reduction team and SRG, should conduct the review and determination 
regarding the availability of technology and economic feasibility; and
    (6) if technology is deemed not available and if a fishery is 
determined to be above he ZMRG after 5 years under an approved TRP, 
then the Secretary should work with fishery participants to develop and 
implement the appropriate technology.
    Response: As provided in response to other comments, some portions 
(points 1-4) of this alternative would be inconsistent with the MMPA; 
therefore, it does not represent a reasonable alternative for 
consideration in defining an insignificance threshold under this 
proposed rule. In accordance with the MMPA, NMFS currently prioritizes 
the development and implementation of TRPs to address strategic stocks 
that interact with Category I and II fisheries and that have a small 
population size, those that are declining most rapidly, and those for 
which incidental mortality and serious injury exceed a stock's PBR. 
NMFS will work with take reduction teams and SRGs to review the 
economics of affected fisheries and the availability of existing 
technologies as required by the MMPA. NMFS will also work with 
participants of fisheries to develop and implement technologies to 
further reduced incidental mortality and serious injury of marine 
mammals as recommended in point 6 of this comment.
    Comment 68: NMFS should consider a three-part approach to defining 
ZMRG. First, NMFS should adopt as a rule its current definition of ZMRG 
as set forth as Option 1 of the ANPR. Second, to address Congressional 
intent to limit incidental mortality of marine mammals as much as 
possible, if current levels of incidental mortality and serious injury 
from commercial fishing on a marine mammal population are lower than 
the Option 1 backstop would allow, ZMRG for each commercial fishery 
interacting with that population must be set no higher than the current 
level of takes. Third, to address the Congressional intent that 
incidental mortality approach a zero rate, NMFS must periodically 
revisit the levels set for marine mammal populations in each fishery 
whose rate does not yet fully approach zero, and gradually reduce those 
levels over a period of years in order to force technology to reduce 
takes to ``insignificant levels approaching a zero mortality and 
serious injury rate''.
    Response: This suggested alternative approach has certain merits; 
however, there are problems, particularly regarding the second and 
third steps. Setting allowable mortality levels no higher than the 
current level of takes would include an assumption that the reported or 
estimated number of takes represents all that are occurring. Observer 
data are available only for a few selected fisheries; therefore, 
current levels of incidental mortality and serious injury cannot be 
verified independently and may exceed current estimates. In addition, 
the MMPA states that once a fishery has achieved target levels of 
incidental mortality and serious injury, that fishery does not have to 
further reduce such mortality and serious injury. If target levels were 
a sliding scale, a fishery could have achieved its target in one year, 
and in a later year, when the target had been reduced, the fishery 
would again be above target mortality and serious injury levels. Such 
an approach does not lend itself to feasible implementation. Although 
NMFS does not propose a sliding scale to ratchet down stock-specific 
insignificant thresholds over time, insignificance thresholds could 
change as a result of new abundance or productivity estimates.
    Comment 69: There are several different ways that NMFS can define 
the ``approaching zero'' prong of ZMRG. The simplest would be an actual 
numerical cap on mortality and serious injury, and such a cap would 
have to be a low number (i.e., <10). The use of the word 
``approaching'' implies movement; therefore, the ``approaching zero'' 
prong of the ZMRG is not static. It would be racheted down closer to 
zero with each successive year until an actual zero mortality and 
serious injury rate were achieved. An alternative would be to define 
``approaching zero'' as a rate in relation to some other variable. The 
key is choosing the right rate and right variable. Perhaps the best way 
to define it is to use a method similar to the 2-tier approach for 
classifying fisheries. For the 2-tiered approach, even if the impacts 
on a given marine mammal stock of all fisheries combined were below 
insignificant levels, a fishery would not be at ZMRG unless it also 
individually was responsible for annual mortality and serious injury of 
no more than a small portion (i.e., 1 percent) of any stock's PBR. Such 
an approach would be straightforward to carry out and would fully 
implement the requirements of the ZMRG.
    Response: Mortality rates ranging from 2 per 10,000 (endangered 
whales) to 6 per 1,000 (robust stocks of pinnipeds) marine mammals in 
the population represent such a small cap as to be approaching a zero 
mortality and serious injury rate; therefore, the second tier of the 
approach in this comment is not necessary to fully implement the 
requirements of the ZMRG.

The Proposed Rule

    NMFS proposes that the default target level of mortality and 
serious injury that would satisfy the ZMRG is 10 percent of any stock's 
PBR. These targets result in upper limits ranging from 2 animals per 
10,000 animals in the population stock for endangered whales to 6 
animals per 1,000 in the population for robust pinniped stocks. These 
initial target levels of incidental mortality and serious injury are 
the starting points for determining final target levels of mortality 
and serious injury on a stock-by-stock basis, which may be adjusted on 
the basis of additional information. For example, in some cases (e.g., 
gray whale, Eastern North Pacific stock, and northern fur seal, Eastern 
North Pacific stock) a calculated, rather than default Rmax value is 
used in PBR calculations. An adjustment for these calculated values in 
the insignificance threshold would be a straight-forward mathematical 
substitution.
    Using an insignificance threshold that is based upon the PBR 
equation is subject to the same limitations and assumptions that are 
found in the PBR calculations. In some cases, particularly for 
declining stocks, the underlying theory of the logistic model may have 
crucial assumptions that are not valid. For example, the PBR approach 
based upon the logistic model indicates that populations should grow if 
mortality is below sustainable levels. In the case of Steller sea 
lions, Western U.S. stock; northern fur seals, Eastern North Pacific 
stock; and Hawaiian monk seals, the populations are declining, and 
known human-caused mortality and serious injury are insufficient to 
cause the decline. In these cases, NMFS may use an adjustment to the 
result of the simple formula for calculating the insignificance 
threshold to estimate an upper limit to the level of mortality and 
serious injury that could be considered insignificant.

[[Page 23490]]

    For North Atlantic right whales, the PBR is zero, which means that 
any human-caused mortality may impede this stock' recovery to OSP. For 
right whales, it would be inconceivable to determine that some 
mortality and serious injury rate above zero would have an 
insignificant effect on the population; therefore, the insignificance 
threshold for right whales would be zero mortality and serious injury 
per 1,000 whales in the population just as the current PBR is zero.
    For some stocks of marine mammals, total incidental mortality and 
serious injury may exceed the insignificance threshold for the stock, 
yet some fisheries may be having such a small impact on the stock that 
these fisheries' levels of mortality and serious injury could be 
insignificant levels approaching a zero mortality and serious injury 
rate. For these situations, the 1995 proposed rule contained a 2-tiered 
approach. The first tier was the evaluation of total fishery mortality 
and serious injury for each stock of marine mammals to determine if 
such mortality and serious injury is below a stock's insignificance 
threshold. The second tier was used when total incidental mortality 
exceeds any stock's insignificance threshold, and provided that a 
fishery that causes no more than 10 percent of any stock's 
insignificance threshold would have achieved insignificant levels 
approaching a zero mortality and serious injury rate.
    The interactions among several MMPA sections and NMFS' implementing 
regulations of these provisions make the 2-tiered approach used in 1995 
unnecessary. MMPA section 118(b)(4) directs NMFS to take appropriate 
action under the TRP process to reduce mortality and serious injury 
under the ZMRG, MMPA section 118(c)(1)(A) identifies the three 
categories of fisheries, and MMPA section 118(f)(1) states that TRPs 
are to be developed for Category I or II fisheries that interact with 
strategic stocks of marine mammals; there are no provisions to develop 
or implement a TRP for a Category III fishery.
    According to the above provisions of the MMPA, there are no 
provisions to require through the TRP process that Category III 
fisheries further reduce mortality and serious injury of marine mammals 
incidental to their operations. Under existing regulations, Category 
III fisheries include those fisheries for which incidental mortality 
and serious injury are no more than 10 percent of the PBR of any stock 
of marine mammals, which is the insignificance threshold under this 
proposed rule. Category III fisheries also include those fisheries 
that, even when total fishery mortality and serious injury exceed 10 
percent of a stock's PBR, kill or seriously injure no more than 1 
percent of that stock's PBR (which is the mathematical equivalent of 10 
percent of the stock's insignificance threshold). Therefore, the result 
of this proposed rule, other existing regulations, and provisions of 
the MMPA is identical to the 2-tiered approach that was contained in 
the ZMRG provisions of the 1995 proposed rule.

Classification

    NMFS has prepared a draft EA to analyze the impacts on the human 
environment of establishing an insignificance threshold to implement 
the ZMRG. NMFS solicits comments on the draft EA (see Electronic 
Access) and on the proposed rule.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
as follows:
    ``The 2003 List of Fisheries (68 FR 418725, July 15, 2003) includes 
39,176 vessels in Category I and II fisheries, which are the fisheries 
subject to further reduction of mortality and serious injury under the 
MMPA. Of these vessels, 34 are large entities; therefore, 39,142 small 
entities may be affected by this proposed rule. The MMPA imposes a 
general moratorium on the taking of marine mammals except as provided 
in limited exceptions. This proposed rule would define an 
insignificance threshold as the upper limit of annual incidental 
mortality and serious injury of marine mammal stocks by commercial 
fisheries that can be considered insignificant levels approaching a 
zero mortality and serious injury rate. This definition would not, by 
itself, place any additional restrictions on the public. Under 
provisions of the MMPA, a take reduction team must be established and a 
take reduction plan developed and implemented within certain time 
frames if a strategic stock of marine mammals interacts with a Category 
I or II commercial fishery. The long-term goal of a take reduction plan 
is to reduce mortality and serious injury of marine mammals to 
insignificant levels approaching a zero mortality and serious injury 
rate, taking into account the economics of affected fisheries, the 
availability of existing technology, and existing state or regional 
fishery management plans. Any measures identified in a take reduction 
plan to reduce incidental mortality and serious injury would require 
separate rulemaking action before the action could be implemented. Any 
subsequent restrictions placed on the public to protect marine mammals 
would be included in separate regulations, and appropriate analyses 
under the Regulatory Flexibility Act would be conducted during those 
rulemaking procedures.''
    Therefore, implementation of this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
As a result, no regulatory flexibility analysis for this proposed rule 
has been prepared.
    This proposed rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1980. This 
proposedrule does not contain policies with federalism implications 
sufficient to warrant preparation of a federalism assessment under E.O. 
13132.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and record keeping 
requirements.

    Dated: April 23, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be amended as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.
    2. In Sec.  229.2, the definition for ``Insignificance threshold'' 
is added in alphabetical order to read as follows:


Sec.  229.2  Definitions.

* * * * *
    Insignificance threshold means the upper limit of annual incidental 
mortality and serious injury of marine mammal stocks by commercial 
fisheries that can be considered insignificant levels approaching a 
zero mortality and serious injury rate. An insignificance threshold is 
estimated as 10 percent of the Potential Biological Removal level for a 
stock of marine mammals. If

[[Page 23491]]

certain parameters (e.g., maximum net productivity rate or the recovery 
factor in the calculation of the stock's potential biological removal 
level) can be estimated or otherwise modified from default values, the 
Assistant Administrator may use a modification of the number calculated 
from the simple formula for the insignificance threshold. The Assistant 
Administrator may also use a modification of the simple formula when 
information is insufficient to estimate the level of mortality and 
serious injury that would have an insignificant effect on the affected 
population stock and provide a rationale for using the modification.
* * * * *
[FR Doc. 04-9753 Filed 4-28-04; 8:45 am]
BILLING CODE 3510-22-S