Fisheries Service Issues Incidental Taking Regulations

by John M. Simpson

The National Marine Fisheries Service (NMFS) published final regulations in the Federal Register on July 27, 2918 governing the unintentional taking of marine mammals incidental to fisheries research conducted in the Pacific Ocean by the NMFS’ Northwest Fisheries Science Center (NWFSC).  83 Fed. Reg. 36370 (July 27, 2018).  The regulations are effective from August 27, 2018 through August 28, 2023. 

The regulations, promulgated pursuant to the Marine Mammal Protection Act (MMPA), stemmed from a 2015 request from the NWFSC for authorization to take marine mammals incidental to fisheries research activities.   The regulations provide for the issuance of Letters of Authorization (LOA) permitting the incidental, but unintentional, take of marine mammals within the California Current Ecosystem, including Puget Sound and the Columbia River.  50 C.F.R. §§ 291.41(b), 291(43(a).  The authorized “takes” are:

“by Level B harassment associated with use of active acoustic systems and physical or visual disturbance of hauled-out pinnipeds and by Level A harassment, serious injury, or mortality associated with use of hook and line gear, trawl gear, and seine gear, provided the activity is in compliance with all terms, conditions, and requirements of the  regulations in this subpart and the applicable LOA.”

Id. § 291.43(b).  The regulations prohibit any “taking” not specified in the LOA and further require NWFSC to undertake a detailed list of mitigation measures.  Id. §§ 219.44 & 219.45.

Animals located within the area of the specified activity include gray whales, 5 types of baleen whales; 11 types of toothed or beaked whales; 9 types of dolphins, including killer whales; 2 types of porpoises; and 6 types of pinnipeds.  83 Fed. Reg. at 36379-81.


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