Notice2022-10066
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
May 11, 2022
Effective
May 11, 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 California (CA) thresher shark/swordfish drift gillnet fishery and the corresponding high seas component of the fishery as defined on the MMPA List of Fisheries as the Pacific highly migratory species drift gillnet fishery.
Full Text
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<title>Federal Register, Volume 87 Issue 91 (Wednesday, May 11, 2022)</title>
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[Federal Register Volume 87, Number 91 (Wednesday, May 11, 2022)]
[Notices]
[Pages 28811-28815]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-10066]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB850]
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 Endangered Species Act (ESA)-listed marine mammal species or
stocks under the Marine Mammal Protection Act (MMPA), in the California
(CA) thresher shark/swordfish drift gillnet fishery and the
corresponding high seas component of the fishery as defined on the MMPA
List of Fisheries as the Pacific highly migratory species drift gillnet
fishery.
DATES: The permit is effective for a three-year period beginning May
11, 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-ca-thresher-shark">https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-ca-thresher-shark</a> or <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0105">https://www.regulations.gov/docket/NOAA-NMFS-2021-0105</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#43002b312a30372a2d226d05222b3a032d2c22226d242c35"><span class="__cf_email__" data-cfemail="e2a18a908b91968b8c83cca4838a9ba28c8d8383cc858d94">[email protected]</span></a>; or Jaclyn Taylor, NMFS Office
of Protected Resources, (301) 427-8402, <a href="/cdn-cgi/l/email-protection#703a11131c091e5e2411091c1f02301e1f11115e171f06"><span class="__cf_email__" data-cfemail="fcb69d9f908592d2a89d8590938ebc92939d9dd29b938a">[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. NMFS has
determined that the CA thresher shark/swordfish drift gillnet/Pacific
highly migratory species drift gillnet 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 (CA/OR/WA
stock of humpback whale and CA/OR/WA stock of sperm 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 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
[[Page 28812]]
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, we proposed to issue a permit
under MMPA section 101(a)(5)(E) to vessels registered in the Category
II CA thresher shark/swordfish drift gillnet/Pacific highly migratory
species drift gillnet fishery, as classified on the final 2021 MMPA
LOF, to incidentally kill or seriously injure the CA/OR/WA stock of
humpback whale and CA/OR/WA stock of sperm whale (86 FR 71423; December
16, 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 CA thresher
shark/swordfish drift gillnet and Pacific highly migratory species
drift gillnet 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 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 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-2021-0105">https://www.regulations.gov/docket/NOAA-NMFS-2021-0105</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), 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 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, NMFS considered the CA/OR/WA stock of humpback whale to
be ESA-listed as it overlaps with the two ESA-listed DPSs (Mexico, and
Central America).
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 three findings necessary for
issuing a MMPA 101(a)(5)(E) permit to the commercial fishery has been
met (i.e., a NID). If a commercial fishery has a non-negligible
[[Page 28813]]
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 CA thresher shark/swordfish drift
gillnet/Pacific highly migratory species drift gillnet fishery using
the process outlined in the directive, and, based on the best available
scientific information, made a NID.
The CA/OR/WA stock of humpback whale is a transboundary stock. 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 (draft 2021) CA/OR/WA
humpback whale SAR has documented M/SI of the CA/OR/WA stock of
humpback whale incidental to this fishery (Carretta et al. 2021).
The estimated annual M/SI of humpback whales (CA/OR/WA stock) in
the CA drift gillnet fishery is 0.1, based on observer data. Since this
M/SI (0.1) is less than NIT<INF>s</INF> (2.48), NMFS determined that
the CA drift gillnet fishery/Pacific highly migratory species drift
gillnet fishery has a negligible impact on the CA/OR/WA stock of
humpback whales (see accompanying MMPA 101(a)(5)(E) determination
document linked above for NIT calculations).
The draft 2021 SAR includes the mean annual total commercial
fishery-related M/SI (>=25.2) for the CA/OR/WA stock of humpback whale.
This comprises M/SI from all commercial fisheries, including the CA
thresher shark/swordfish drift gillnet fishery, as well as fishery-
related M/SI for the stock not assigned to a specific commercial
fishery. The SAR also includes unattributed fishery-related M/SI
(11.15) for the stock, which is not assigned to a specific commercial
fishery. This unattributed fishery-related M/SI could be from any
number of commercial, recreational or tribal fisheries, including the
CA thresher shark/swordfish drift gillnet 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 CA/OR/WA humpback whale stock is
considered a transboundary stock, 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 CA
thresher shark/swordfish drift gillnet fishery through a fishery
observer program. Further, most of the information on large whale
entanglements on the West Coast is reported to and documented by the
West Coast Large Whale Entanglement Response Program. If additional
fishery-related M/SI of the CA/OR/WA stock of humpback whale is
documented through the observer program or West Coast Large Whale
Entanglement Response Program that indicates additional M/SI of the CA/
OR/WA stock of humpback whale in the CA thresher shark/swordfish drift
gillnet fishery, then NMFS will re-evaluate the NID and the permit.
The CA/OR/WA stock of sperm whale is not a transboundary stock.
Therefore, we conducted the NID analysis starting with the Tier 1
(NIT<INF>t</INF>) analysis. The most recent (final 2020) CA/OR/WA sperm
whale SAR documented M/SI of the CA/OR/WA stock of sperm whale
incidental to this fishery (Carretta et al. 2021). The total annual
average human-caused M/SI for the CA/OR/WA stock of sperm whales from
2013-2017 is 0.64, including 0.4 per year for the CA thresher shark/
swordfish drift gillnet fishery and 0.24 per year for the sablefish
hook and line fishery (Carretta et al. 2021). There was no other human-
related M/SI of the CA/OR/WA stock of sperm whale reported during this
time period. Since M/SI (0.64) is less than NIT<INF>t</INF> (2.54), the
CA drift gillnet fishery/Pacific highly migratory species drift gillnet
fishery is considered to have a negligible impact on the CA/OR/WA stock
of sperm whales.
The NID analysis is presented in an 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 (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-ca-thresher-shark">https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-ca-thresher-shark</a> or <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0105">https://www.regulations.gov/docket/NOAA-NMFS-2021-0105</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 CA thresher shark/swordfish drift gillnet/Pacific
highly migratory species drift gillnet fishery will have a negligible
impact on the associated ESA-listed marine mammal stocks (CA/OR/WA
stock of humpback whale and CA/OR WA stock of sperm whale).
Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied for the
commercial fishery (see MMPA 101(a)(5)(E) determination document is
available at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2021-0105">https://www.regulations.gov/docket/NOAA-NMFS-2021-0105</a>).
Recovery Plan
Recovery plans for humpback whales and sperm whales have 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 CA thresher shark/swordfish drift gillnet fishery, for the
affected marine mammal species or stocks, has a TRP in place.
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-2021-0105">https://www.regulations.gov/docket/NOAA-NMFS-2021-0105</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.
[[Page 28814]]
The CA thresher shark/swordfish drift gillnet/Pacific highly migratory
species drift gillnet fishery has been observed by NMFS since 1990.
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 Permit
Based on the above evaluation for the CA thresher shark/swordfish
drift gillnet/Pacific highly migratory species drift gillnet 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 the CA thresher shark/
swordfish drift gillnet/Pacific highly migratory species drift gillnet
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 CA thresher shark/swordfish drift gillnet/Pacific highly
migratory species drift gillnet fishery on ESA-listed marine mammals,
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 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 NID 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 16, 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 CA
thresher shark/swordfish drift gillnet/Pacific highly migratory species
drift gillnet fishery (86 FR 71423). The public comment period closed
on January 18, 2022. NMFS received three comment letters on the
proposed issuance of the permit and underlying preliminary
determination. Oceana opposed issuing the permit. In addition, two non-
substantive comment letters from members of the public opposed issuing
the permit. Only responses to substantive comments pertaining to the
proposed permit and preliminary determination under MMPA section
101(a)(5)(E) are addressed below.
Comment 1: Oceana incorporates their previous comments submitted on
the NMFS' draft ``Criteria for Determining Negligible Impact under MMPA
Section 101(a)(5)(E).''
Response: Oceana's comments on the draft ``Criteria for Determining
Negligible Impact under MMPA Section 101(a)(5)(E)'' were previously
addressed by NMFS and are available at: <a href="https://www.fisheries.noaa.gov/action/criteria-determining-negligible-impact-under-mmpa-section-101a5e">https://www.fisheries.noaa.gov/action/criteria-determining-negligible-impact-under-mmpa-section-101a5e</a>.
Comment 2: Oceana states that the existing monitoring program for
the CA drift gillnet fishery does not meet the MMPA's requirement to
provide statistically-reliable M/SI estimates. They note that observer
coverage has averaged 20 percent annually, despite recommendations from
the Pacific Fishery Management Council (Council) to achieve 100 percent
observer coverage. Oceana asserts that 20 percent observer coverage is
inadequate to accurately document marine mammal M/SI in the fishery.
Oceana recommends NMFS not issue the MMPA 101(a)(5)(E) permit until the
CA drift gillnet fishery is observed at 100 percent.
Response: NMFS disagrees that the monitoring program for the CA
thresher shark/swordfish drift gillnet is insufficient to fulfill the
monitoring requirements of MMPA section 101(a)(5)(E). The CA thresher
shark/swordfish drift gillnet fishery has been observed by NMFS since
1990. The observer program in the CA drift gillnet fishery collects
data on all target and non-target species, including the incidental M/
SI of marine mammals. NMFS scientists use data from the observer
program to generate statistically-valid estimates of M/SI that are in
the most recent SARs for the CA/OR/WA stocks of humpback whale and
sperm whale. As such, it satisfies the requirement in MMPA section
101(a)(5)(E)(i)(III).
Comment 3: Oceana recommends NMFS implement the protected species
hard caps for the CA drift gillnet fishery recommended by the Council
before issuing the MMPA 101(a)(5)(E) permit to the fishery. They
further state that NMFS should phase out and prohibit the use of large
mesh drift gillnets and transition to a sustainable swordfish fishery.
They note that in 2015 the Council recommended that NMFS increase
observer coverage to 100 percent and set mortality and injury hard caps
for nine sea turtle and marine mammal species in the CA drift gillnet
fishery. Oceana states that NMFS has not implemented either of the
Council's recommendations.
Response: The Council's fishery management actions are taken to
implement the Magnuson-Stevens Fishery Conservation and Management Act,
and this permit is authorized under section 101(a)(5)(E) of the MMPA.
In January 2020, the federal court in the Central District of
California ordered NMFS to finalize its proposed ``hard caps'' rule,
which would close the fishery upon reaching specified limits of
[[Page 28815]]
interactions with protected species. NMFS had sought to withdraw its
proposed hard caps rule, after public comment had demonstrated closures
would cause fishermen economic hardships NMFS had not anticipated. In
February 2021, the federal court in the District of Columbia vacated
the rule, agreeing that NMFS had found that the rule did not comply
with National Standard 7's requirement to, where practicable, minimize
costs and avoid unnecessary duplication.
NMFS made a NID for the CA thresher shark/swordfish drift gillnet
fishery's current bycatch using the process outlined in the directive,
and, based on the best available scientific information (NMFS 2020).
While implementation of future fishery management actions in the CA
thresher shark/swordfish drift gillnet fishery could affect marine
mammal bycatch rates, consideration of those actions are not relevant
to or needed to support the determinations for this permit.
Comment 4: Oceana comments NMFS's NID is biased towards inflating
PBR and underestimating M/SI in the CA drift gillnet fishery. They
state that, in 2016, NMFS established separate DPSs for humpback
whales, including the Mexican and Central American DPSs. However, both
the SAR and NID combine the Mexican and Central American DPSs into the
CA/OR/WA stock of humpback whale and do not consider declines in the
humpback population since 2018.
Oceana also notes that the NID analysis does not include two
observed entanglements in drift gillnet gear in 2021. They note that
observer coverage for the 2021-22 fishing season is not yet available,
as the fishing season has not concluded. However, using an estimate of
20 percent observer coverage, the two observed entanglements would be
approximately five total takes using a ratio estimator approach.
Response: Humpback whales were listed globally as endangered under
the ESA in 1970 (35 FR 18319). On September 8, 2016, NMFS published a
final rule dividing the globally listed endangered humpback whale into
14 DPSs and categorizing four DPSs as endangered and one as threatened
(81 FR 62259). NMFS is in the process of revising humpback whale stock
structure under the MMPA in light of the 2016 final rule on humpback
whale DPSs as established under the ESA. In doing so, NMFS is following
the process laid out in ``Procedural Directive 02-204-03: Reviewing and
Designating Stocks and Issuing Stock Assessment Reports under the
Marine Mammal Protection Act'' (NMFS 2019). As noted by the commenter,
the CA/OR/WA stock of humpback whales does not align with the DPSs
established under the ESA and comprises animals from the endangered
Central American DPS, the threatened Mexico DPS, and the unlisted
Hawaii DPS.
Because we cannot manage one portion of an MMPA stock as ESA-listed
and another portion of a stock as not ESA-listed, until humpback whale
stock structure has been revised, NMFS continues to use the existing
MMPA stock structure for MMPA management purposes, including NIDs and
101(a)(5)(E) authorizations. Therefore, for purposes of evaluating the
impact of the CA thresher shark/swordfish drift gillnet fishery under
the MMPA, NMFS used the current MMPA designation of the CA/OR/WA stock
of humpback whales. In the case of the CA/OR/WA stock of humpback
whales, for the purposes of this NID analysis, NMFS considers the
entire stock to be endangered under the ESA and depleted under the
MMPA. In addition, because the CA/OR/WA humpback whale stock is
considered to be transboundary, NMFS assumed NITt is exceeded and
conducted the more conservative Tier 2 analysis with the lower NITs
criterion.
The most recent (draft 2021) CA/OR/WA humpback whale SAR has
documented M/SI of the CA/OR/WA stock of humpback whale incidental to
this fishery (Carretta et al. 2021). The draft 2021 SAR includes
observer data through the 2019 fishing season. NMFS anticipates that
future SARs will incorporate bycatch estimates for the CA thresher
shark/swordfish drift gillnet fishery that include recent observed M/SI
in 2021 after they have been completed.
Given this approach and ongoing efforts to revise humpback whale
stock structure in the Pacific, NMFS has proceeded with a final NID for
the CA thresher shark/swordfish drift gillnet fishery with respect to
the CA/OR/WA stock of humpback whales and is issuing a 101(a)(5)(E)
permit for this fishery. Nevertheless, if, during the 3-year
authorization, there is a significant change in the information or
conditions used to support any of these determinations, including a
change in MMPA stock structure and associated estimates of abundance
and M/SI incidental to commercial fisheries, NMFS may re-evaluate the
NID.
References
Carretta, J.W., K.A. Forney, E.M. Olson, D.W. Weller, A.R. Lang, J.
Baker, M.M. Muto, B. Hanson, A.J. Orr, J. Barlow, J.E. Moore, and
R.L. Brownell. 2021. Draft U.S. Pacific Marine Mammal Stock
Assessments: 2021. NOAA-TM-NMFS-SWFSC-XXX.
Carretta, J.W., K.A. Forney, E.M. Olson, D.W. Weller, A.R. Lang, J.
Baker, M.M. Muto, B. Hanson, A.J. Orr, J. Barlow, J.E. Moore, and
R.L. Brownell. 2021. U.S. Pacific Marine Mammal Stock Assessments:
2020. NOAA-TM-NMFS-SWFSC-646.
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>.
Dated: May 5, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-10066 Filed 5-10-22; 8:45 am]
BILLING CODE 3510-22-P
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