Notice2021-23047
Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Proposed Issuance of Permit
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 22, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Marine Fisheries Service (NMFS) is proposing to issue a permit to authorize the incidental, but not intentional, take of specific Endangered Species Act (ESA)-listed marine mammal species or stocks under the Marine Mammal Protection Act (MMPA), in the WA/OR/ CA sablefish pot fishery.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 202 (Friday, October 22, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 202 (Friday, October 22, 2021)]
[Notices]
[Pages 58641-58644]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23047]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB449]
Taking of Threatened or Endangered Marine Mammals Incidental to
Commercial Fishing Operations; Proposed Issuance of Permit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments.
-----------------------------------------------------------------------
SUMMARY: The National Marine Fisheries Service (NMFS) is proposing to
issue a permit to authorize the incidental, but not intentional, take
of specific Endangered Species Act (ESA)-listed marine mammal species
or stocks under the Marine Mammal Protection Act (MMPA), in the WA/OR/
CA sablefish pot fishery.
DATES: Comments on this action and supporting documents must be
received by November 8, 2021.
ADDRESSES: You may submit comments on the proposed permit and the
preliminary determination supporting the permit, identified by NOAA-
NMFS-2021-0092, through the Federal e-Rulemaking Portal:
1. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-NMFS-2021-0092
in the Search box.
2. Click the ``Comment'' icon, and complete the required fields.
3. Enter or attach your comments.
Instructions: NMFS may not consider comments if they are sent by
any other method, to any other address or individual, or received after
the end of the comment period. Due to delays in processing mail related
to COVID-19 and health and safety concerns, no mail, courier, or hand
deliveries will be accepted. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
The preliminary determination supporting the permit is available on
the internet at <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0092">https://www.regulations.gov/docket/NOAA-NMFS-2021-0092</a>.
Other supporting information is available on the internet including:
Recovery plans for the ESA-listed marine mammal species, <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act">https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act</a>; 2021 MMPA List of
Fisheries (LOF), <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables">https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables</a>; the most recent Marine Mammal
Stock Assessment Reports (SAR) by region, <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>-region, and stock, <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>-species-stock; and Take Reduction Teams and
Plans, <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams</a>.
FOR FURTHER INFORMATION CONTACT: Tina Fahy, NMFS West Coast Region,
(562) 980-4023, <a href="/cdn-cgi/l/email-protection#5e1d362c372d2a37303f70183f36271e30313f3f70393128"><span class="__cf_email__" data-cfemail="a6e5ced4cfd5d2cfc8c788e0c7cedfe6c8c9c7c788c1c9d0">[email protected]</span></a>; or Jaclyn Taylor, NMFS Office
of Protected Resources, (301) 427-8402, <a href="/cdn-cgi/l/email-protection#2e644f4d425740007a4f5742415c6e40414f4f00494158"><span class="__cf_email__" data-cfemail="256f4446495c4b0b71445c494a57654b4a44440b424a53">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The MMPA requires NMFS to authorize the
incidental take of ESA-listed marine mammals in commercial fisheries
provided it can make the following determinations: (1) The incidental
mortality and serious injury (M/SI) from commercial fisheries will have
a negligible impact on the affected species or stocks; (2) a recovery
plan for all affected species or stocks of threatened or endangered
marine mammals has been developed or is being developed; and (3) where
required under MMPA section 118, a take reduction plan has been
developed or is being developed, a monitoring program is implemented,
and vessels participating in the fishery are registered. We have made a
preliminary determination that the WA/OR/CA sablefish pot fishery meets
these three requirements and propose to issue a permit to the fishery
to authorize the incidental take of ESA-listed marine mammal species or
stocks under the MMPA for a period of three years. We solicit public
comments on the proposed issuance of the permit and the underlying
preliminary determination.
Background
The MMPA LOF classifies each commercial fishery as a Category I,
II, or III fishery based on the level of mortality and injury of marine
mammals occurring incidental to each fishery as defined in 50 CFR
229.2. Category I and II fisheries must register with NMFS and are
subsequently authorized to incidentally take marine mammals during
commercial fishing operations. However, that authorization is limited
to those marine mammals that are not listed as threatened or endangered
under the ESA. Section 101(a)(5)(E) of the MMPA, 16 U.S.C. 1371, states
that NMFS, as delegated by the Secretary of Commerce, for a period of
up to three years shall allow the incidental, but not intentional,
taking of marine mammal stocks designated as depleted because of their
listing as an endangered species or threatened species under the ESA,
16 U.S.C. 1531 et seq., by persons using vessels of the United States
and those vessels which have valid fishing permits issued by the
Secretary in accordance with section 204(b) of the Magnuson-Stevens
Fishery Conservation and Management Act, 16 U.S.C. 1824(b), while
engaging in commercial fishing operations, if NMFS makes certain
determinations. NMFS must determine, after notice and opportunity for
public comment, that: (1) Incidental M/SI from commercial fisheries
will have a negligible impact on the affected species or stock; (2) a
recovery plan has been developed or is being developed for such species
or stock under the ESA; and (3) where required under section 118 of the
MMPA, a monitoring program has been established, vessels engaged in
such fisheries are registered in accordance with section 118 of the
MMPA, and a take reduction plan has been developed or is being
developed for such species or stock.
The LOF includes a list of marine mammal species or stocks
incidentally killed or injured in each commercial fishery. We evaluated
ESA-listed stocks or species included on the 2021 MMPA LOF as killed or
seriously injured following NMFS' Procedural Directive 02-238 ``Process
for Distinguishing Serious from Non-Serious Injury of Marine Mammals.''
Based on this evaluation, we propose to issue a permit under MMPA
section 101(a)(5)(E) to vessels registered in the Category II WA/OR/CA
sablefish pot fishery, as classified on the final 2021 MMPA LOF, to
incidentally kill or seriously injure
[[Page 58642]]
the CA/OR/WA stock of humpback whale.
NMFS will regularly evaluate other commercial fisheries for
purposes of making a negligible impact determination (NID) and issuing
MMPA section 101(a)(5)(E) authorizations with the annual LOF as new
information becomes available. More information about the WA/OR/CA
sablefish pot fishery is available in the 2021 MMPA LOF (86 FR 3028;
January 14, 2021) and on the internet at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables">https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables</a>.
We reviewed the best available scientific information to determine
if the WA/OR/CA sablefish pot fishery met the three requirements of
MMPA section 101(a)(5)(E) for issuing a permit. This information is
included in the 2021 MMPA LOF (86 FR 3028; January 14, 2021), the SAR
for CA/OR/WA stock of humpback whale (available at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>), the humpback whale recovery plan (available
at: <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act">https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act</a>), and other
relevant information, as detailed further in the document describing
the preliminary determination supporting the permit (available at:
<a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0092">https://www.regulations.gov/docket/NOAA-NMFS-2021-0092</a>).
NMFS is in the process of revising humpback whale stock structure
under the MMPA in light of the 14 Distinct Population Segments (DPSs)
established under the ESA (81 FR 62259, September 8, 2016), based on
the recently finalized ``Procedural Directive 02-204-03: Reviewing and
Designating Stocks and Issuing Stock Assessment Reports under the
Marine Mammal Protection Act'' (NMFS 2019). The DPSs that occur in
waters under the jurisdiction of the United States do not align with
the existing MMPA stocks. Some of the listed DPSs partially coincide
with the currently defined stocks. Because we cannot manage one portion
of an MMPA stock as ESA-listed and another portion of a stock as not
ESA-listed, until such time as the MMPA stock designations are revised
in light of the ESA DPSs, NMFS continues to use the existing MMPA stock
structure for MMPA management purposes (e.g., selection of a recovery
factor, stock status) and treats such stocks as ESA-listed if a
component of that stock is listed under the Act and overlaps with the
analyzed commercial fishery.
Basis for Determining Negligible Impact
Prior to issuing a MMPA 101(a)(5)(E) permit to take ESA-listed
marine mammals incidental to commercial fishing, NMFS must determine if
the M/SI incidental to commercial fisheries will have a negligible
impact on the affected marine mammal species or stocks. NMFS satisfies
this requirement by making a NID. Although the MMPA does not define
``negligible impact,'' NMFS has issued regulations providing a
qualitative definition of ``negligible impact,'' defined in 50 CFR
216.103 as ``an impact resulting from the specified activity that
cannot be reasonably expected to, and is not reasonably likely to
adversely affect the species or stock through effects on annual rates
of recruitment or survival.''
Criteria for Determining Negligible Impact
NMFS relies on a quantitative approach for determining negligible
impact detailed in NMFS Procedural Directive 02-204-02 (directive),
``Criteria for Determining Negligible Impact under MMPA section
101(a)(5)(E),'' which became effective on June 17, 2020 (NMFS 2020).
The procedural directive is available online at: <a href="https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives">https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives</a>. This directive describes NMFS' process for
determining whether incidental M/SI from commercial fisheries will have
a negligible impact on ESA-listed marine mammal species/stocks (the
first requirement necessary for issuing a MMPA section 101(a)(5)(E)
permit as noted above).
The directive first describes the derivation of two Negligible
Impact Thresholds (NIT), which represent levels of removal from a
marine mammal species or stock. The first, Total Negligible Impact
Threshold (NIT<INF>t</INF>), represents the total amount of human-
caused M/SI that NMFS considers negligible for a given stock. The
second, lower threshold, Single NIT (NIT<INF>s</INF>) represents the
level of M/SI from a single commercial fishery that NMFS considers
negligible for a stock. NIT<INF>s</INF> was developed in recognition
that some stocks may experience non-negligible levels of total human-
caused M/SI but one or more individual fisheries may contribute a very
small portion of that M/SI, and the effect of an individual fishery may
be considered negligible.
The directive describes a detailed process for using these NIT
values to conduct a NID analysis for each fishery classified as a
Category I or II fishery on the MMPA LOF. The NID process uses a two-
tiered analysis. The Tier 1 analysis first compares the total human-
caused M/SI for a particular stock to NIT<INF>t</INF>. If
NIT<INF>t</INF> is not exceeded, then all commercial fisheries that
kill or seriously injure the stock are determined to have a negligible
impact on the particular stock. If NIT<INF>t</INF> is exceeded, then
the Tier 2 analysis compares each individual fishery's M/SI for a
particular stock to NIT<INF>s</INF>. If NIT<INF>s</INF> is not
exceeded, then the commercial fishery is determined to have a
negligible impact on that particular stock. For transboundary,
migratory stocks, because of the uncertainty regarding the M/SI that
occurs outside of U.S. waters, we assume that total M/SI exceeds
NIT<INF>t</INF> and proceed directly to the Tier 2 NIT<INF>s</INF>
analysis. If a commercial fishery has a negligible impact across all
ESA-listed stocks, then the first of three findings necessary for
issuing a MMPA 101(a)(5)(E) permit to the commercial fishery has been
met (i.e., a negligible impact determination). If a commercial fishery
has a non-negligible impact on any ESA-listed stock, then NMFS cannot
issue a MMPA 101(a)(5)(E) permit for the fishery to incidentally take
ESA-listed marine mammals.
These NID criteria rely on the best available scientific
information, including estimates of a stock's minimum population size
and human-caused M/SI levels, as published in the most recent SARs and
other supporting documents, as appropriate. Using these inputs, the
quantitative negligible impact thresholds allow for straightforward
calculations that lead to clear negligible or non-negligible impact
determinations for each commercial fishery analyzed. In rare cases,
robust data may be unavailable for a straightforward calculation, and
the directive provides instructions for completing alternative
calculations or assessments where appropriate.
Negligible Impact Determination
We evaluated the impact of the WA/OR/CA sablefish pot fishery
following the directive, and, based on the best available scientific
information, made a draft NID. The NID analysis is presented in
accompanying MMPA 101(a)(5)(E) determination document that provides
summaries of the information used to evaluate each ESA-listed stock
documented on the 2021 MMPA LOF as killed or injured incidental to the
fishery. An estimate of mean annual commercial fishery-related M/SI is
available for the CA/OR/WA stock of humpback whale in the most recent
SAR. The SAR also includes unattributed fishery-related M/SI for the
[[Page 58643]]
stock but not assigned to a specific commercial fishery. Because data
are not currently available to assign the unattributed fishery-related
M/SI to a specific commercial fishery, it was not accounted for in the
NID analysis. The draft MMPA 101(a)(5)(E) determination document is
available at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0092">https://www.regulations.gov/docket/NOAA-NMFS-2021-0092</a>.
Based on the criteria outlined in the directive, the most recent SAR,
and the best available scientific information, NMFS has determined that
the M/SI incidental to the Category II WA/OR/CA sablefish pot fishery
will have a negligible impact on the associated ESA-listed marine
mammal stock. Accordingly, this MMPA 101(a)(5)(E) requirement is
satisfied for the commercial fishery.
Recovery Plan
The humpback whale recovery plan has been completed (see <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act">https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act</a>). Accordingly, the
requirement to have a recovery plan in place or being developed is
satisfied.
Take Reduction Plan
Subject to available funding, MMPA section 118 requires the
development and implementation of a Take Reduction Plan (TRP) for each
strategic stock that interacts with a Category I or II fishery. The
stock considered for this permit is designated as a strategic stock
under the MMPA because the stock, or a component of the stock, is
listed as threatened or endangered under the ESA (MMPA section
3(19)(C)).
The short- and long-term goals of a TRP are to reduce M/SI of
marine mammals incidental to commercial fishing to levels below the
Potential Biological Removal (PBR) level for stocks and to an
insignificant threshold, defined by NMFS as 10 percent of PBR,
respectively. The obligations to develop and implement a TRP are
subject to the availability of funding. MMPA section 118(f)(3) (16
U.S.C. 1387(f)(3)) contains specific priorities for developing TRPs
when funding is insufficient. NMFS has insufficient funding available
to simultaneously develop and implement TRPs for all strategic stocks
that interact with Category I or Category II fisheries. As provided in
MMPA section 118(f)(6)(A) and (f)(7), NMFS uses the most recent SAR and
LOF as the basis to determine its priorities for establishing Take
Reduction Teams (TRT) and developing TRPs. Information about NMFS'
marine mammal TRTs and TRPs may be found at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams</a>.
Based on NMFS' priorities, implementation of a TRP for the WA/OR/CA
sablefish pot fishery is currently deferred under MMPA section 118 as
other stocks/fisheries are a higher priority for any available funding.
Accordingly, the requirement under MMPA section 118 to have TRPs in
place or in development is satisfied (see preliminary determination
supporting the permit available on the internet at <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0092">https://www.regulations.gov/docket/NOAA-NMFS-2021-0092</a>).
Monitoring Program
Under MMPA section 118(d), NMFS is to establish a program for
monitoring incidental M/SI of marine mammals from commercial fishing
operations. The WA/OR/CA sablefish pot fishery is the subject of a NMFS
fishery observer program. Accordingly, the requirement under MMPA
section 118 to have a monitoring program in place is satisfied.
Vessel Registration
MMPA section 118(c) requires that vessels participating in Category
I and II fisheries register to obtain an authorization to take marine
mammals incidental to fishing activities. NMFS has integrated the MMPA
registration process, implemented through the Marine Mammal
Authorization Program, with existing state and Federal fishery license,
registration, or permit systems for Category I and II fisheries on the
LOF. Therefore, the requirement for vessel registration is satisfied.
Conclusions for Proposed Permit
Based on the above evaluation for the WA/OR/CA sablefish pot
fishery as it relates to the three requirements of MMPA 101(a)(5)(E),
we propose to issue a MMPA 101(a)(5)(E) permit to the commercial
fishery to authorize the incidental take of ESA-listed species or
stocks during commercial fishing operations. If, during the 3-year
authorization, there is a significant change in the information or
conditions used to support any of these determinations, NMFS will re-
evaluate whether to amend or modify the authorization, after notice and
opportunity for public comment. NMFS solicits public comments on the
proposed permit and the preliminary determination supporting the
permit.
ESA Section 7 and National Environmental Policy Act Requirements
ESA section 7(a)(2) requires federal agencies to ensure that
actions they authorize, fund, or carry out do not jeopardize the
existence of any species listed under the ESA, or destroy or adversely
modify designated critical habitat of any ESA-listed species. The
effects of the WA/OR/CA sablefish pot fishery on ESA-listed marine
mammals for which a permit is proposed here were analyzed in the
appropriate ESA section 7 Biological Opinion on the commercial fishery,
and incidental take was exempted for those ESA-listed marine mammals
for the fishery.
Under section 7 of the ESA, Biological Opinions quantify the
effects of the proposed action on ESA-listed species and their critical
habitat and, where appropriate, authorize anticipated future take of
ESA-listed species as specified in the incidental take statement. Under
MMPA section 101(a)(5)(E), NMFS analyzes previously documented M/SI
incidental to commercial fisheries through the negligible impact
determination process, and when the necessary findings can be made,
issues a MMPA section 101(a)(5)(E) permit that allows for an
unspecified amount of incidental taking of specific ESA-listed marine
mammal stocks while engaging in commercial fishing operations. Thus,
the applicable standards and resulting analyses under the MMPA and ESA
differ, and as such, may not always align. The National Environmental
Policy Act (NEPA) requires Federal agencies to evaluate the impacts of
alternatives for their actions on the human environment. Because the
proposed permit would not modify any fishery operation and the effects
of the fishery operations have been evaluated in accordance with NEPA,
no additional NEPA analysis beyond that conducted for the associated
Fishery Management Plans is required for the permit. Issuing the
proposed permit would have no additional impact on the human
environment or effects on threatened or endangered species beyond those
analyzed in these documents.
References
National Marine Fisheries Service (NMFS). 2020. National Marine
Fisheries Service Procedure 02-204-02: Criteria for Determining
Negligible Impact under MMPA Section 101(a)(5)(E). 20 p. Available
online: <a href="https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives">https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives</a>
National Marine Fisheries Service (NMFS). 2019. National Marine
Fisheries Service Procedure 02-204-03: Reviewing and designating
stocks and issuing Stock Assessment Reports under the Marine Mammal
Protection Act. 9 p. Available online: https://
www.fisheries.noaa.gov/national/laws-and-policies/protected-
[[Page 58644]]
resources-policy-directives
National Marine Fisheries Service (NMFS). 2016. National Marine
Fisheries Service Procedure 02-204-01: Guidelines for preparing
stock assessment reports pursuant to the 1994 amendments to the
Marine Mammal Protection Act. 23 p. Available online: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/guidelines-assessing-marine-mammal-stocks">https://www.fisheries.noaa.gov/national/marine-mammal-protection/guidelines-assessing-marine-mammal-stocks</a>
National Marine Fisheries Service (NMFS). 2014. National Marine
Fisheries Service Procedure 02-238-01: Process for Distinguishing
Serious from Non-Serious Injury of Marine Mammals. 42 p. Available
online: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-policies-guidance-and-regulations">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-policies-guidance-and-regulations</a>
Dated: October 19, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2021-23047 Filed 10-21-21; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on October 22, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.