Amendments to national marine sanctuary regulations.

Please accept these brief comments on two sections of the final regulations: I. The definition of Take (taking or taken), section 922.11 Take (taking or taken) of a marine mammal, sea turtle, or bird means: (1) Take as that term is defined in section 3(19) of the Endangered Species Act of 1973, as amended, 16 U.S.C. 1532(19) (ESA); (2) Take as that term is defined in section 3(13) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1362(13) (MMPA); or (3) Conducting an activity prohibited by section 703 of the Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703 (MBTA). Comment: NOAA said in this Federal Register Notice that it modified this definition from the proposed definition "to ensure the existing scope . . . is not unintentionally expanded." We are concerned that the definition has been limited. If other statutes are mentioned (the ESA, MMPA, MBTA), the regulations should be clear that the "take" of marine mammals, sea turtles, and birds are not limited to those animals with protections under those laws, which would be consistent with the former definition. Further, the final regulation's definition excludes many animals that were proposed to be included. For example, the proposed definition applied to all ESA-listed species; NOAA has limited the applicability of the final definition to a marine mammal, sea turtle or bird. 87 Fed. Reg. at 29620. NOAA should provide additional information about the impacts of this rulemaking on ESA-listed species in sanctuaries. Section 7(a)(2) of the ESA requires NOAA to ensure that any action it authorizes, funds or carries out is "not likely to jeopardize the continued existence of any endangered species." When an agency determines that its proposed action "may affect listed species" it must engage in formal consultation with the expert federal wildlife agency responsible for the species at issue using "the best scientific and commercial data available." The application of the definition of take may affect listed species. II. Threats to protected resources from fishing activities (922.5): Allowed activities. ". . . The Director may only directly regulate fishing activities pursuant to the procedure set forth in section 304(a)(5) of the NMSA." Comment: Fishing gear entanglements are a primary threat to whales and sea turtles. Attached are a petition for national rulemaking in sanctuaries and two Monterey Bay National Marine Sanctuary comment letters regarding the impacts of fishing that NOAA must consider immediately. The final regulation's statement in section 922.5 that the director may only directly regulate fishing activities pursuant to NMSA section 304(a)(5) contradicts the ESA. Specifically, Section 2(c) of the ESA establishes that it is "the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act." The ESA defines "conservation" to mean "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary." It is of utmost importance that NOAA immediately regulate primary threats to endangered species in national marine sanctuaries, even if those threats are fishing-related. ESA section 7 consultation on management plan revisions is one avenue for mitigating fishing-related threats. NOAA must eliminate the erroneous statement in section 922.5 and recognize that multiple authorities exist to protect sanctuary resources from fishing threats, not only section 304(a)(5).