Notice2022-02166
Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; 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
February 3, 2022
Effective
February 3, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Marine Fisheries Service (NMFS) is issuing 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 Alaska (AK) Bering Sea, Aleutian Islands (BSAI) Pacific cod pot fishery.
Full Text
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<title>Federal Register, Volume 87 Issue 23 (Thursday, February 3, 2022)</title>
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[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Notices]
[Pages 6140-6144]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02166]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB696]
Taking of Threatened or Endangered Marine Mammals Incidental to
Commercial Fishing Operations; Issuance of Permit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice.
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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing a
permit to authorize the incidental, but not intentional, take of
specific
[[Page 6141]]
Endangered Species Act (ESA)-listed marine mammal species or stocks
under the Marine Mammal Protection Act (MMPA), in the Alaska (AK)
Bering Sea, Aleutian Islands (BSAI) Pacific cod pot fishery.
DATES: The permit is effective for a three-year period beginning
February 3, 2022.
ADDRESSES: Reference materials for the permit including the final
negligible impact determination are available on the internet at
<a href="https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-ak-bering-sea-aleutian">https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-ak-bering-sea-aleutian</a> or <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0123">https://www.regulations.gov/docket/NOAA-NMFS-2021-0123</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: Suzie Teerlink, NMFS Alaska Region,
907-586-7240, <a href="/cdn-cgi/l/email-protection#4f1c3a35262a611b2a2a3d232621240f21202e2e61282039"><span class="__cf_email__" data-cfemail="6c3f19160509423809091e000502072c02030d0d420b031a">[email protected]</span></a>; or Jaclyn Taylor, NMFS Office of
Protected Resources, 301-427-8402, <a href="/cdn-cgi/l/email-protection#1c567d7f70657232487d6570736e5c72737d7d327b736a"><span class="__cf_email__" data-cfemail="e6ac87858a9f88c8b2879f8a8994a688898787c8818990">[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 (16 U.S.C.
1371(a)(5)(E)). NMFS has determined that the AK BSAI Pacific cod pot
fishery meets these three requirements and is issuing a permit to the
fishery to authorize the incidental take of ESA-listed marine mammal
species or stocks (Central North Pacific and Western North Pacific
stocks of humpback whale) under the MMPA for a period of three years.
Background
The MMPA List of Fisheries (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 3 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 final 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, NMFS proposed to issue a permit
under MMPA section 101(a)(5)(E) to vessels registered in the Category
II AK BSAI Pacific cod pot fishery, as classified on the final 2021
MMPA LOF, to incidentally kill or seriously injure individuals from the
Central North Pacific and Western North Pacific stocks of humpback
whale (86 FR 71236; December 15, 2021).
NMFS will regularly evaluate other commercial fisheries for
purposes of making a negligible impact determination (NID) and issuing
section 101(a)(5)(E) authorizations with the annual LOF as new
information becomes available. More information about the AK BSAI
Pacific cod 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
whether the AK BSAI Pacific cod pot fishery met the three requirements
of MMPA section 101(a)(5)(E) for issuing a permit for the incidental
taking of ESA-listed marine mammals. This information is included in
the 2021 MMPA LOF (86 FR 3028; January 14, 2021), the SARs for these
species (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>), recovery
plans for these species (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 documents describing the preliminary and final
determinations supporting the permit (available at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0123">https://www.regulations.gov/docket/NOAA-NMFS-2021-0123</a>).
NMFS is in the process of revising humpback whale stock structure
under the MMPA in response to the 14 Distinct Population Segments
(DPSs) established under the ESA (81 FR 62259, September 8, 2016), and
based on the ``Procedural Directive 02-204-03: Reviewing and
Designating Stocks and Issuing Stock Assessment Reports under the
Marine Mammal Protection Act'' (NMFS 2019). The humpback whale 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
[[Page 6142]]
MMPA stock designations are revised, 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. Therefore, for the purpose of this MMPA
101(a)(5)(E) authorization, we considered the Central North Pacific and
Western North Pacific stocks of humpback whales to be ESA-listed as
they overlap with the two ESA-listed DPSs: The threatened Mexico DPS
and the endangered Western North Pacific DPS.
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>. The 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 3 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
NMFS evaluated the impact of the AK BSAI Pacific cod pot fishery
using the process outlined in the directive, and, based on the best
available scientific information, made a NID.
The Central North Pacific and Western North Pacific stocks of
humpback whales are transboundary stocks. As noted above, because of
the uncertainty regarding M/SI that occurs outside of U.S. waters for
transboundary stocks, we assumed that total M/SI exceeds
NIT<INF>t</INF> and proceeded directly to the Tier 2 NIT<INF>s</INF>
analysis. The most recent (2020) final Central North Pacific and
Western North Pacific humpback whale SARs documented M/SI of Central
North Pacific and Western North Pacific stocks of humpback whale
incidental to this fishery (Muto et al. 2021).
The estimated annual M/SI of Central North Pacific humpback whales
in the AK BSAI Pacific cod pot fishery is 0.2, based on Alaska Marine
Mammal Health and Stranding Response Program data. Since this M/SI
(0.2) is less than NIT<INF>s</INF> (3.59), NMFS determined that the AK
BSAI Pacific cod pot fishery has a negligible impact on the Central
North Pacific stock of humpback whales (see accompanying MMPA
101(a)(5)(E) determination document linked above for NIT calculations).
The estimated annual M/SI of Western North Pacific humpback whales
in the AK BSAI Pacific cod pot fishery is 0.2, based on Alaska Marine
Mammal Health and Stranding Response Program data. Since this M/SI
(0.2) is less than NITs (0.39), NMFS determined that the AK BSAI
Pacific cod pot fishery has a negligible impact on the Western North
Pacific stock of humpback whales (see accompanying MMPA 101(a)(5)(E)
determination document linked above for NIT calculations).
The estimated annual M/SI noted above for the Central North Pacific
and Western North Pacific stocks of humpback whales is based on a
single M/SI event that occurred in an area where the two stocks
overlap. This M/SI was assigned to both the Central North Pacific and
Western North Pacific stocks (Muto et al. 2021) and was therefore
included in the NID analysis for each of these stocks. This is
conservative as it double counts this single M/SI event and assumes it
applies to each stock individually. Furthermore, this also
conservatively assumes that this M/SI necessarily involved a humpback
that is listed under the ESA, despite a large portion (approximately 91
percent) of the
[[Page 6143]]
humpback whales in the Aleutian Islands, Bering Sea, Chukchi Sea, and
Beaufort Sea area estimated to be part of the Hawaii DPS, which is not
listed under the ESA (Wade 2021, NMFS 2021). However, as discussed
above, the humpback whale MMPA stock designations are currently being
revised in response to the ESA-listed DPSs. In revising humpback
stocks, NMFS is evaluating the available data and methods to apportion
the M/SI to the individual stocks in areas where they overlap. Once the
revised stock designations are finalized and the M/SI for those stocks
is analyzed, the MMPA 101(a)(5)(E) authorization will be modified as
appropriate.
The 2020 SAR includes the mean annual total commercial fishery-
related M/SI (9.8) for the Central North Pacific stock of humpback
whale and (0.9) for the Western North Pacific stock of humpback whale.
This comprises M/SI from all commercial fisheries, including the AK
BSAI Pacific cod pot fishery, as well as fishery-related M/SI for the
stock not assigned to a specific commercial fishery. The SARs for both
stocks also include unattributed fishery-related M/SI (7.9 for Central
North Pacific, 0.4 for Western North Pacific), which is not assigned to
a specific commercial fishery. This unattributed fishery-related M/SI
could be from any number of commercial or recreational fisheries,
including the AK BSAI Pacific cod pot fishery. In accordance with NMFS
Procedural Directive 02-204-02, because data are not currently
available to assign the unattributed fishery-related M/SI to a specific
commercial fishery, we did not include unattributed mortality in the
calculations for the NID Tier 2 analysis (NMFS 2020).
In addition, because the Central North Pacific and Western North
Pacific stocks of humpback whales are considered to be transboundary
stocks, NMFS assumed NIT<INF>t</INF> is exceeded and conducted the more
conservative Tier 2 analysis with the lower NIT<INF>s</INF> criterion.
NMFS is actively monitoring the AK BSAI Pacific cod pot fishery through
the North Pacific Fisheries Observer Program. Further, most of the
information on large whale entanglements in Alaska is reported to and
documented by the Alaska Large Whale Entanglement Response Program. If
additional fishery-related M/SI of the Central North Pacific or Western
North Pacific stock of humpback whale is documented through the
observer program or the Alaska Marine Mammal Health and Stranding
Response Program that indicates additional M/SI of the Central North
Pacific or Western North Pacific stock of humpback whale in the AK BSAI
Pacific cod pot fishery, then NMFS will re-evaluate the NID and the
permit.
The NID analysis is presented in an accompanying MMPA section
101(a)(5)(E) determination document that provides summaries of the
information used to evaluate each ESA-listed stocks documented on the
2021 MMPA LOF as killed or injured incidental to the fishery (available
at: <a href="https://www.fisheries.noaa.gov/action/mmpa-list-fisheries-2021">https://www.fisheries.noaa.gov/action/mmpa-list-fisheries-2021</a>).
The final MMPA 101(a)(5)(E) determination document is available at:
<a href="https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-ak-bering-sea-aleutian">https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-ak-bering-sea-aleutian</a> or <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0123">https://www.regulations.gov/docket/NOAA-NMFS-2021-0123</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 AK BSAI Pacific cod pot fishery will have a negligible
impact on the associated ESA-listed marine mammal stocks (Central North
Pacific and Western North Pacific stocks of humpback whale).
Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied for the
commercial fishery (see MMPA 101(a)(5)(E) determination document
available at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0123">https://www.regulations.gov/docket/NOAA-NMFS-2021-0123</a>).
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 recovery plans 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
stocks considered for this permit are designated as a strategic stock
under the MMPA because the stocks, or a component of the stocks, are
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 AK BSAI
Pacific cod 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 determination supporting the
permit available on the internet at <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0123">https://www.regulations.gov/docket/NOAA-NMFS-2021-0123</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 AK BSAI Pacific cod pot fishery is monitored under the
partial coverage category through the North Pacific Fisheries 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 AK BSAI Pacific cod pot
fishery as it relates to the three requirements of MMPA section
101(a)(5)(E), we are issuing a MMPA 101(a)(5)(E) permit to
[[Page 6144]]
the AK BSAI Pacific cod pot fishery to authorize the incidental take of
ESA-listed species or stocks during commercial fishing operations. If,
during the three-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.
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 AK BSAI Pacific cod pot fishery on ESA-listed marine
mammals, were analyzed in the ESA section 7 Biological Opinion for the
BSAI Groundfish Fishery Management Plan.
Under section 7 of the ESA, Biological Opinions analyze the effects
of the proposed action on ESA-listed species and their critical habitat
and, where appropriate, exempt 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 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 Plan is required for
the permit. Issuing the permit would have no additional impact on the
human environment or effects on threatened or endangered species beyond
those analyzed in these documents.
Public Comments
On December 15, 2021, NMFS published a notice and request for
comments in the Federal Register for the proposed issuance of a permit
under MMPA section 101(a)(5)(E) to vessels registered in the Category
II AK BSAI Pacific cod pot fishery (86 FR 71236). The public comment
period closed on December 30, 2021. NMFS received one non-substantive
comment letter opposing the proposed issuance of the permit and
underlying preliminary negligible impact determination.
References
Muto, M.M., V.T. Helker, B.J. Delean, N.C. Young, J.C. Freed, R.P.
Angliss, N.A. Friday, P.L. Boveng, J.M. Breiwick, B.M. Brost, M.F.
Cameron, P.J. Clapham, J.L. Crance, S.P. Dahle, M.E. Dahlheim, B.S.
Fadely, M.C. Ferguson, L.W. Fritz, K.T. Goetz, R.C. Hobbs, Y.V.
Ivashchenko, A.S. Kennedy, J.M. London, S.A. Mizroch, R.R. Ream,
E.L. Richmond, K.E. W. Shelden, K.L. Sweeney, R.G. Towell, P.R.
Wade, J.M. Waite, and A.N. Zerbini. 2021. Alaska marine mammal stock
assessments, 2020. U.S. Department of Commerce, NOAA Tech. Memo.
NMFS-AFSC-421. 398 p.
National Marine Fisheries Service (NMFS). 2021. Occurrence of
Endangered Species Act (ESA) Listed Humpback Whales off Alaska. 4 p.
Available online: <a href="https://media.fisheries.noaa.gov/2021-12/Guidance-Humpbacks-Alaska.pdf">https://media.fisheries.noaa.gov/2021-12/Guidance-Humpbacks-Alaska.pdf</a>.
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: <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). 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>
Wade, P. R. 2021. Estimates of abundance and migratory destination
for North Pacific humpback whales in both summer feeding areas and
winter mating and calving areas. International Whaling Commission.
SC/68c/IA/03. 32 p. <a href="https://archive.iwc.int/">https://archive.iwc.int/</a>.
Dated: January 28, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-02166 Filed 2-2-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on February 3, 2022.
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