Notice2024-12938
Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permits
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
June 13, 2024
Effective
June 13, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The NMFS is issuing permits 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 certain U.S. commercial fisheries.
Full Text
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<title>Federal Register, Volume 89 Issue 115 (Thursday, June 13, 2024)</title>
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[Federal Register Volume 89, Number 115 (Thursday, June 13, 2024)]
[Notices]
[Pages 50270-50279]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12938]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD818]
Taking of Threatened or Endangered Marine Mammals Incidental to
Commercial Fishing Operations; Issuance of Permits
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice.
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SUMMARY: The NMFS is issuing permits 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 certain U.S. commercial fisheries.
DATES: These permits are effective for a 3-year period beginning June
13, 2024.
ADDRESSES: Reference materials for the permits are available on the
internet at: https://www.fisheries.noaa.gov/action/
[[Page 50271]]
negligible-impact-determinations-and-mmpa-section-101a5e-authorization-
commercial-0 or <a href="https://www.regulations.gov/docket/NOAA-NMFS-2024-0003">https://www.regulations.gov/docket/NOAA-NMFS-2024-0003</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>; 2024 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 (TRT)
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: Elena Duke, NMFS Pacific Islands
Region, 808-725-5085, <a href="/cdn-cgi/l/email-protection#185d747d7679365c6d737d5876777979367f776e"><span class="__cf_email__" data-cfemail="9dd8f1f8f3fcb3d9e8f6f8ddf3f2fcfcb3faf2eb">[email protected]</span></a>; Suzie Teerlink, NMFS Alaska
Region, (907) 586-7240, <a href="/cdn-cgi/l/email-protection#f3a086899a96dda79696819f9a9d98b39d9c9292dd949c85"><span class="__cf_email__" data-cfemail="580b2d22313d760c3d3d2a343136331836373939763f372e">[email protected]</span></a>; or Jaclyn Taylor, NMFS
Office of Protected Resources, (301) 427-8402, <a href="/cdn-cgi/l/email-protection#ca80aba9a6b3a4e49eabb3a6a5b88aa4a5ababe4ada5bc"><span class="__cf_email__" data-cfemail="ce84afada2b7a0e09aafb7a2a1bc8ea0a1afafe0a9a1b8">[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 pursuant to the
ESA; and (3) where required under MMPA section 118, a take reduction
plan (TRP) has been developed or is being developed, a monitoring
program is established, and vessels participating in the fishery are
registered. NMFS has determined that certain commercial fisheries meet
these three requirements and are issuing permits to these fisheries to
authorize the incidental take of ESA-listed marine mammal species or
stocks under the MMPA for a period of 3 years.
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. Section 118(c)(2) of the MMPA requires fishing vessels that
operate in Category I and II fisheries to 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 118(a)(2) of the MMPA, 16 U.S.C. 1387(a)(2),
also requires an additional authorization at section 101(a)(5) of the
MMPA, 16 U.S.C. 1371, for incidental taking of ESA-listed marine
mammals. 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 consecutive years shall allow the incidental, but not intentional,
taking of marine mammal species or 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, 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 pursuant to 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 TRP 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 2024 MMPA LOF (89 FR
12257, February 16, 2024) 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 permits under MMPA section 101(a)(5)(E) to vessels
registered in four Category I or Category II commercial fisheries, as
classified on the final 2024 MMPA LOF, to incidentally kill or
seriously injure individuals from specific ESA-listed marine mammal
stocks, as listed in table 1 below (89 FR 15843, March 5, 2024).
Table 1--Commercial Fisheries Authorized to Take (M/SI) Specific
Threatened and Endangered Marine Mammals Incidental to Fishing
Operations
------------------------------------------------------------------------
ESA-listed marine
Commercial fishery LOF category mammal stock
------------------------------------------------------------------------
HI deep-set longline/Western I.................. False killer whale,
Pacific pelagic longline (HI Main HI Islands
deep-set component) \1\. Insular.
AK Bering Sea, Aleutian II................. Bearded seal,
Islands flatfish trawl. Beringia Humpback
whale, Western
North Pacific
Ringed seal, Arctic
Steller sea lion,
Western U.S.
AK Bering Sea, Aleutian II................. Bearded seal,
Islands pollock trawl. Beringia Humpback
whale, Mexico-North
Pacific Humpback
whale, Western
North Pacific
Ringed seal, Arctic
Steller sea lion,
Western U.S.
AK Gulf of Alaska sablefish II................. Sperm whale, North
longline. Pacific Steller sea
lion, Western U.S.
------------------------------------------------------------------------
\1\ The Western Pacific pelagic longline (HI deep-set component) is the
corresponding high seas component of the HI deep-set longline fishery
as defined on the MMPA LOF.
Category III fisheries are those commercial fisheries that have a
remote likelihood of or no known incidental mortality or serious injury
of marine mammals (MMPA section 118(c)(1)(A)(iii)). All commercial
fisheries classified as Category III on the most current LOF do not
require MMPA 101(a)(5)(E) authorization so long as any mortality or
injury of marine mammals incidental to their operations is reported
pursuant to MMPA section 118(e).
[[Page 50272]]
Furthermore, per NMFS' Procedural Directive 02-204-02 (procedural
directive), ``Criteria for Determining Negligible Impact under MMPA
section 101(a)(5)(E)'' (NMFS 2020), NMFS considers such Category III
fisheries to have a negligible impact on that marine mammal stock or
species.
Thus, we incorporate by reference all Category III fisheries
included in the 2024 MMPA LOF (89 FR 12257, February 16, 2024) as not
subject to the ESA prohibition against incidentally taking marine
mammals from endangered or threatened species and not subject to any
penalties, provided any mortalities or injures are reported as required
under MMPA section 118(e).
In addition, specifically for the purposes of MMPA section
101(a)(5)(E), commercial fisheries classified as Category I or II on
the LOF solely because of incidental M/SI of non-ESA-listed marine
mammals meet the definition of a Category III commercial fishery with
respect to ESA-listed stocks or species because the fishery has a
remote likelihood of or no known incidental M/SI of ESA-listed marine
mammals (NMFS 2020). In other words, if the commercial fishery is a
Category I or II fishery because of incidental take of non-ESA listed
marine mammals, we consider it a Category III fishery here. We have
determined that the following Category I and II commercial fisheries
meet this criteria:
Category I
<bullet> Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics
longline; and
<bullet> AK Southeast salmon drift gillnet;
Category II
<bullet> AK Bristol Bay salmon drift gillnet;
<bullet> AK Kodiak salmon set gillnet;
<bullet> AK Peninsula/Aleutian Islands salmon set gillnet;
<bullet> AK Yakutat salmon set gillnet; and
<bullet> HI shallow-set longline/Western Pacific pelagic longline
(HI shallow-set component).
These fisheries do not require 101(a)(5)(E) authorization and are
not subject to the ESA prohibition against incidentally taking marine
mammals from endangered or threatened stocks and not subject to any
penalties, provided any marine mammal mortalities or injuries are
reported as required under MMPA section 118(e).
NMFS regularly evaluates 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 fisheries in table 1 is
available in the 2024 MMPA LOF (89 FR 12257, February 16, 2024) 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>.
For each commercial fishery listed in table 1, 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 2024 MMPA LOF (89 FR 12257,
February 16, 2024), 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 permits
(available at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2024-0003">https://www.regulations.gov/docket/NOAA-NMFS-2024-0003</a>).
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 uses 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 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 NITs allow for straightforward calculations that lead to
clear negligible or non-NIDs for each
[[Page 50273]]
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 Determinations
NMFS evaluated the impact of each commercial fishery (listed in
table 1 above) following the directive and based on the best available
scientific information, made NIDs. These NID analyses are presented in
accompanying MMPA 101(a)(5)(E) evaluation documents that provide
summaries of the information used to evaluate each ESA-listed stock
documented on the 2024 MMPA LOF as killed or injured incidental to the
fishery (available 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>). The final MMPA
101(a)(5)(E) evaluation documents are available at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2024-0003">https://www.regulations.gov/docket/NOAA-NMFS-2024-0003</a>.
The following stocks listed in table 1 are transboundary stocks:
Western North Pacific stock of humpback whale, Mexico-North Pacific
stock of humpback whale, North Pacific stock of sperm whale, Western
U.S. stock of Steller sea lion, Beringia stock of bearded seal, and
Arctic stock of ringed seal. 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> for the
above transboundary stocks and proceeded directly to the Tier 2
NIT<INF>s</INF> analysis.
The most recent SARs for several stocks listed in table 1 include
fishery-related M/SI not assigned to a specific commercial fishery
(information provided in NID analyses summaries where applicable
below). This unattributed fishery-related M/SI could be from any number
of commercial, recreational, or subsistence fisheries, including
fisheries listed in table 1. 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 NID Tier 2 analyses (described below). NMFS is
actively monitoring the fisheries in table 1 through fishery observer
programs. If additional fishery-related M/SI is documented through the
observer programs that indicate additional M/SI of the stocks listed in
table 1, then NMFS will re-evaluate the appropriate NID and the permit.
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 four Category I and II fisheries listed
in table 1 will have a negligible impact on the associated ESA-listed
marine mammal stocks. Accordingly, this MMPA 101(a)(5)(E) requirement
is satisfied for these commercial fisheries (see MMPA 101(a)(5)(E)
determination document is available at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2024-0003">https://www.regulations.gov/docket/NOAA-NMFS-2024-0003</a>). Summaries of the NID analyses are provided
below.
HI Deep-Set Longline/Western Pacific Pelagic Longline (HI Deep-Set
Component) Fishery
The Category I HI deep-set longline/Western Pacific pelagic
longline (HI deep-set component) fishery has documented incidental M/SI
of the main HI Islands (MHI) insular stock of false killer whale in the
2023 draft SAR (Carretta et al. In press). The total annual average
human caused M/SI for this stock (0.1) does not exceed NIT<INF>t</INF>
(0.258); thus, the Tier 1 analysis is satisfied and all commercial
fisheries are considered to have a negligible impact on this stock (see
accompanying MMPA 101(a)(5)(E) evaluation document linked above for NIT
calculation).
AK Bering Sea, Aleutian Islands Flatfish Trawl Fishery
The Category II AK Bering Sea, Aleutian Islands flatfish trawl
fishery has documented incidental M/SI of the Western U.S. stock of
Steller sea lion in the 2023 draft SAR (Young et al. In press). The
2023 SAR includes mean annual total commercial fishery-related M/SI
(39) for the Western U.S. stock of Steller sea lion. This comprises M/
SI from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands flatfish trawl 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 (1.9) for the stock, which
is not assigned to a specific commercial fishery.
The estimated M/SI of Steller sea lions (Western U.S. stock) in the
AK Bering Sea, Aleutian Islands flatfish trawl fishery is 13, based on
observer data. Since this M/SI (13) is less than NIT<INF>s</INF>
(38.87), NMFS determined that the AK Bering Sea, Aleutian Islands
flatfish trawl fishery has a negligible impact on the Western U.S.
stock of Steller sea lion (see accompanying MMPA 101(a)(5)(E)
evaluation document).
The Category II AK Bering Sea, Aleutian Islands flatfish trawl
fishery has documented M/SI of the Western North Pacific stock of
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR
includes mean annual total commercial fishery-related M/SI (0.012) for
the Western North Pacific stock of humpback whale. This comprises M/SI
from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands flatfish trawl 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 (0.001) 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 subsistence fisheries, including the AK Bering Sea,
Aleutian Islands flatfish trawl fishery.
The estimated M/SI of humpback whales (Western North Pacific stock)
in the AK Bering Sea, Aleutian Islands flatfish trawl fishery is 0,
based on observer data. Since this M/SI (0) is less than
NIT<INF>s</INF> (0.439), NMFS determined that the AK Bering Sea,
Aleutian Islands flatfish trawl fishery has a negligible impact on the
Western North Pacific stock of humpback whale (see accompanying MMPA
101(a)(5)(E) evaluation document).
The Category II AK Bering Sea, Aleutian Islands flatfish trawl
fishery has documented incidental M/SI of the Beringia stock of bearded
seal in the 2020 final SAR (Muto et al. 2021). The mean annual total
commercial fishery-related M/SI of the Beringia stock of bearded seal
is 1.8, and all attributed to trawl fisheries. The estimated M/SI of
bearded seals (Beringia stock) in the AK Bering Sea, Aleutian Islands
flatfish trawl fishery is 1.2, based on observer data. Since this M/SI
(1.2) is less than NIT<INF>s</INF> (213.5), NMFS determined that the AK
Bering Sea, Aleutian Islands flatfish trawl fishery has a negligible
impact on the Beringia stock of bearded seal (see accompanying MMPA
101(a)(5)(E) evaluation document).
The Category II AK Bering Sea, Aleutian Islands flatfish trawl
fishery has documented incidental M/SI of the Arctic stock of ringed
seal in the 2020 final SAR (Muto et al. 2021). The mean annual total
commercial fishery-related M/SI of the Arctic stock of ringed seal is
4.8, and all attributed to trawl fisheries. The estimated M/SI of
ringed seals (Arctic stock) in the AK Bering Sea, Aleutian Islands
flatfish trawl fishery is 4.6, based on observer data. Since this M/SI
(4.6) is less than NIT<INF>s</INF> (123.6), NMFS determined that the AK
Bering Sea, Aleutian Islands flatfish trawl fishery has a negligible
impact on the Arctic stock of ringed seal (see accompanying MMPA
101(a)(5)(E) evaluation document).
[[Page 50274]]
AK Bering Sea, Aleutian Islands Pollock Trawl Fishery
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented incidental M/SI of the Western U.S. stock of
Steller sea lion in the 2023 draft SAR (Young et al. In press). The
2023 SAR includes mean annual total commercial fishery-related M/SI
(39) for the Western U.S. stock of Steller sea lion. This comprises M/
SI from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands flatfish trawl 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 (1.9) for the stock, which
is not assigned to a specific commercial fishery.
The estimated M/SI of Steller sea lions (Western U.S. stock) in the
AK Bering Sea, Aleutian Islands pollock trawl fishery is 6.8, based on
observer data. Since this M/SI (6.8) is less than NIT<INF>s</INF>
(38.87), NMFS determined that the AK Bering Sea, Aleutian Islands
pollock trawl fishery has a negligible impact on the Western U.S. stock
of Steller sea lion (see accompanying MMPA 101(a)(5)(E) evaluation
document).
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented incidental M/SI of the Arctic stock of ringed
seal in the 2020 final SAR (Muto et al. 2021). The estimated M/SI of
ringed seals (Arctic stock) in the AK Bering Sea, Aleutian Islands
pollock trawl fishery is 0.2, based on observer data. Since this M/SI
(0.2) is less than NIT<INF>s</INF> (123.6), NMFS determined that the AK
Bering Sea, Aleutian Islands pollock trawl fishery has a negligible
impact on the Arctic stock of ringed seal (see accompanying MMPA
101(a)(5)(E) evaluation document).
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented M/SI of the Western North Pacific stock of
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR
includes mean annual total commercial fishery-related M/SI (0.012) for
the Western North Pacific stock of humpback whale. This comprises M/SI
from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands pollock trawl 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 (0.001) for the stock, which
is not assigned to a specific commercial fishery.
The estimated M/SI of humpback whales (Western North Pacific stock)
in the AK Bering Sea, Aleutian Islands pollock trawl fishery is 0.008,
based on observer data. Since this M/SI (0.008) is less than
NIT<INF>s</INF> (0.439), NMFS determined that the AK Bering Sea,
Aleutian Islands pollock trawl fishery has a negligible impact on the
Western North Pacific stock of humpback whale (see accompanying MMPA
101(a)(5)(E) evaluation document).
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented M/SI of the Mexico-North Pacific stock of
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR
includes mean annual total commercial fishery-related M/SI (0.36) for
the Mexico-North Pacific stock of humpback whale. This comprises M/SI
from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands pollock trawl 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 (0.05) for the stock, which
is not assigned to a specific commercial fishery.
The estimated M/SI of humpback whales (Mexico-North Pacific stock)
in the AK Bering Sea, Aleutian Islands pollock trawl fishery is 0.03,
based on observer data. As described in the 2022 final SAR, the minimum
population estimate (N<INF>min</INF>) for this stock is considered
unknown (Young et al. 2023), and therefore NIT<INF>s</INF> cannot be
calculated directly. Using the process outlined in the directive (NMFS
2020), a threshold N<INF>min</INF> for NIT<INF>s</INF> was calculated.
The threshold N<INF>min</INF> for NIT<INF>s</INF> is 69.93. Since it is
likely that the minimum population for the Mexico-North Pacific stock
of humpback whale exceeds the threshold N<INF>min</INF>, NMFS has
determined that the AK Bering Sea, Aleutian Islands pollock trawl
fishery has a negligible impact on the Mexico-North Pacific stock of
humpback whale (see accompanying MMPA 101(a)(5)(E) evaluation
document).
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented incidental M/SI of the Beringia stock of bearded
seal in the 2020 final SAR (Muto et al. 2021). The estimated M/SI of
bearded seal (Beringia stock) in the AK Bering Sea, Aleutian Islands
pollock trawl fishery is 0.6, based on observer data. Since this M/SI
(0.6) is less than NIT<INF>s</INF> (213.5), NMFS determined that the AK
Bering Sea, Aleutian Islands pollock trawl fishery has a negligible
impact on the Beringia stock of bearded seal (see accompanying MMPA
101(a)(5)(E) evaluation document).
AK Gulf of Alaska Sablefish Longline Fishery
The Category II AK Gulf of Alaska sablefish longline fishery has
documented M/SI of North Pacific stock of sperm whale in the 2020 final
SAR (Muto et al. 2021). The estimated M/SI of sperm whales (North
Pacific stock) in the AK Gulf of Alaska sablefish longline fishery is
1.1, based on observer data.
As noted in the SAR, current and historical abundance estimates of
sperm whales in the North Pacific are based on limited data and are
considered unreliable; caution should be exercised in interpreting
published estimates. Further, sperm whales are far-ranging and exhibit
sex segregation and stock overlap that together make population size
estimation difficult (Muto et al. 2021). More specifically, females and
juveniles are unlikely to occur in this area, so the abundance estimate
includes only males. As described in the 2020 final SAR, a
N<INF>min</INF> can be calculated for this stock using the population
estimate of 345 (coefficient of variation (CV) = 0.43) from surveys in
the Gulf of Alaska in 2015, the N<INF>min</INF> is then derived from
the estimate and CV and results in a N<INF>min</INF> of 244 sperm
whales. However, this N<INF>min</INF> (244) is an underestimate for the
entire stock because it is based on surveys of a small portion of the
stock's extensive range and it does not account for animals missed on
the trackline or for females and juveniles in tropical and subtropical
waters (Muto et al. 2021). Therefore, using the process outlined in the
directive (NMFS 2020), we calculated a threshold N<INF>min</INF> for
NIT<INF>s</INF> which is 4,230.8. Genetic evidence suggests that the
males sampled in the sub-Artic come from multiple populations at lower
latitudes including the West Coast (N<INF>min</INF> = 1,270) and
Hawai[revaps]i (N<INF>min</INF> = 4,486) stocks as well as the Eastern
Tropical Pacific stock and thus do not represent the males from a
single population (Mesnick et al. 2011). Given the uncertainty of the
stock assessment and the underestimated abundance, NMFS has determined
that it is likely that the abundance is greater than the threshold
N<INF>min</INF> and that the AK Gulf of Alaska sablefish longline
fishery has a negligible impact on the North Pacific stock of sperm
whale (see accompanying MMPA 101(a)(5)(E) evaluation document).
The Category II AK Gulf of Alaska sablefish longline fishery has
documented incidental M/SI of the Western U.S. stock of Steller sea
lion in the 2023 draft SAR (Young et al. In press). The 2023 SAR
includes mean annual total commercial fishery-related M/SI (39) for the
Western U.S. stock of
[[Page 50275]]
Steller sea lion. This comprises M/SI from all commercial fisheries,
including the AK Gulf of Alaska sablefish longline 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 (1.9) for the stock, which is not assigned to a specific
commercial fishery.
The estimated M/SI of Steller sea lions (Western U.S. stock) in the
AK Gulf of Alaska sablefish longline fishery is 1.9, based on observer
data. Since this M/SI (1.9) is less than NIT<INF>s</INF> (38.87), NMFS
determined that the AK Gulf of Alaska sablefish longline fishery has a
negligible impact on the Western U.S. stock of Steller sea lion (see
accompanying MMPA 101(a)(5)(E) evaluation document).
Recovery Plans
Recovery plans for Steller sea lions, sperm whales, and false
killer whales (MHI insular) 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>).
A new recovery plan for humpback whales is being developed. In
2016, NMFS revised the listing status of the humpback whale under the
ESA. The globally listed endangered species was divided into 14
distinct population segments (DPSs), the species-level listing was
removed, and NMFS listed four DPSs as endangered and one DPS as
threatened (81 FR 62260, September 8, 2016). In June 2022, NMFS
published a recovery outline for the Central America, Mexico, and
Western North Pacific DPSs of humpback whales (<a href="https://www.fisheries.noaa.gov/resource/document/recovery-outline-central-america-mexico-and-western-north-pacific-distinct">https://www.fisheries.noaa.gov/resource/document/recovery-outline-central-america-mexico-and-western-north-pacific-distinct</a>). The recovery
outline serves as an interim guidance document and, with the existing
species-wide recovery plan, directs recovery efforts, including
recovery planning, for the Central America, Mexico, and Western North
Pacific DPSs of humpback whales. Once finalized, the new recovery plan
will replace the species-wide recovery plan that was published in 1991.
Recovery plans for bearded and ringed seals are also being
developed.
Accordingly, the requirement that a recovery plan has been
developed or is being developed pursuant to the ESA is satisfied.
Take Reduction Plans
The MMPA section 118 requires the development and implementation of
a TRP for each strategic stock that interacts with a Category I or II
fishery. Subject to available funding, the Secretary shall give highest
priority to the development of TRPs for species or stocks whose M/SI
exceeds potential biological removal (PBR) level, have a small
population size, and which are declining most rapidly. The stocks
considered for these permits are designated as strategic stocks under
the MMPA because the stocks or a component of the stocks are listed as
threatened species or endangered species under the ESA (MMPA section
3(19)(C)).
The MMPA establishes short- and long-term goals of a TRP. The
short-term goal of a TRP is to reduce M/SI of marine mammals
incidentally taken in commercial fisheries to levels below the PBR for
stocks. The long-term goal is to reduce M/SI of marine mammals
incidentally taken in commercial fisheries to levels below the
insignificant threshold, defined by NMFS as 10 percent of a stock's PBR
level (50 CFR 229.2). 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 SAR and LOF as the
basis to determine its priorities for establishing 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>.
The HI deep-set longline fishery, for the affected marine mammal
species or stocks (table 1), has a TRP in place.
Both the AK Bering Sea, Aleutian Islands flatfish trawl and AK
Bering Sea, Aleutian Islands pollock trawl fisheries, for the affected
marine mammals species or stocks (table 1) have met the long-term goals
of a TRP (i.e., M/SI of marine mammals incidentally taken in these
fisheries is below the insignificant threshold, which is 10 percent of
a stock's PBR level).
PBR and incidental M/SI for each stock listed in table 1 in the AK
Bering Sea, Aleutian Islands flatfish trawl fishery are as follows:
<bullet> Bearded seal, Beringia--PBR = 8,210, M/SI = 1.2, M/SI as
percent of the stock's PBR = 0.01 percent;
<bullet> Humpback whale, Western North Pacific--PBR = 0.2, M/SI =
0, M/SI as percent of stock's PBR = 0 percent;
<bullet> Ringed seal, Arctic--PBR = 4,755, M/SI = 4.6, M/SI as
percent of the stock's PBR = 0.097 percent; and
<bullet> Steller sea lion, Western U.S--PBR = 299, M/SI = 13, M/S
as percent of the stock's PBR = 4.3 percent.
PBR and incidental M/SI for each stock listed in table 1 in the AK
Bering Sea, Aleutian Islands pollock trawl fishery are as follows:
<bullet> Bearded seal, Beringia--PBR = 8,210, M/SI = 0.6, M/SI as
percent of the stock's PBR = 0.007 percent;
<bullet> Humpback whale, Mexico-North Pacific--PBR is undetermined,
M/SI = 0.03; \1\
---------------------------------------------------------------------------
\1\ N<INF>min</INF> for the Mexico-North Pacific stock of
humpback whale in the winter and summer areas is 2,241 and 766,
respectively. Both of these estimates of abundance are based on data
collected more than 15 years ago. As stated in the 2022 SAR, because
N<INF>min</INF> is considered unknown, PBR is undetermined. Based on
the dated N<INF>min</INF> for this population, that NMFS believes
the population to be either stable or increasing, and the incidental
M/SI of 0.03 in the AK Bering Sea, Aleutian Islands pollock trawl
fishery, NMFS estimates the M/SI is below 10 percent of the stock's
PBR.
---------------------------------------------------------------------------
<bullet> Humpback whale, Western North Pacific--PBR = 0.2, M/SI =
0.008, M/SI as percent of stock's PBR = 4 percent;
<bullet> Ringed seal, Arctic--PBR = 4,755, M/SI = 0.2, M/SI as
percent of the stock's PBR = 0.004 percent; and
<bullet> Steller sea lion, Western U.S--PBR = 299, M/SI = 6.8, M/SI
as percent of the stock's PBR = 2.2 percent.
Marine mammal M/SI incidental to each commercial fishery (AK Bering
Sea, Aleutian Islands flatfish trawl, and AK Bering Sea, Aleutian
Islands pollock trawl) is below 10 percent of each stock's PBR; thus it
is already below the insignificance threshold and approaching a zero M/
SI rate (i.e., achieved the long-term goal of a TRP). MMPA section
118(b) requires fisheries to reduce incidental M/SI to insignificant
levels and states that fisheries that maintain insignificant M/SI
levels shall not be required to further reduce those rates. Therefore,
the AK Bering Sea, Aleutian Islands flatfish trawl and AK Bering Sea,
Aleutian Islands pollock trawl fisheries cannot be required to further
reduce M/SI rates associated with marine mammal species or stocks. As a
result, further take reduction planning is not appropriate at this
time.
As noted above and in the SAR, the N<INF>min</INF> (244) for the
North Pacific stock of sperm whales ``is an underestimate for the
entire stock because it is based on surveys of a small portion of the
stock's extensive range and it does not account for animals missed on
the trackline or
[[Page 50276]]
for females and juveniles in tropical and subtropical waters'' (Muto et
al. 2021). A TRP for M/SI of the North Pacific stock of sperm whales in
the AK Gulf of Alaska sablefish longline fishery is under development
and will progress as information gaps are addressed.
In addition, the AK Gulf of Alaska sablefish longline fishery has
met the long-term goal of a TRP for the Western U.S. stock of Steller
sea lion (i.e., M/SI incidentally taken in this fisheries is below the
insignificant threshold, which is 10 percent of a stock's PBR level).
PBR for the Western U.S. stock of Steller sea lion is 299 and
incidental M/SI in the AK Gulf of Alaska sablefish longline fishery is
1.9 which is 0.6 percent of PBR.
All of the evaluated fisheries listed in table 1, for the affected
marine mammal species or stocks, have a TRP in place, achieved the
long-term goal of MMPA section 118(f), or based on NMFS' priorities,
implementation of a TRP is currently deferred under section 118 as
other stocks/fisheries are a higher priority for any available funding
for establishing new TRPs. Accordingly, the requirement under MMPA
section 118 to have TRPs in place or in development is satisfied (see
determinations supporting the permits available on the internet at
<a href="https://www.regulations.gov/docket/NOAA-NMFS-2024-0003">https://www.regulations.gov/docket/NOAA-NMFS-2024-0003</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. Each of the fisheries listed in table 1 is monitored by
NMFS fishery observer programs. 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 Permits
Based on the above evaluation for each commercial fishery listed in
table 1 as it relates to the three requirements of MMPA section
101(a)(5)(E), we are issuing MMPA 101(a)(5)(E) permits to the
commercial fisheries in table 1 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. If the authorization
for an individual fishery in table 1 becomes amended, modified, or
invalidated for any reason during the 3-year period, the authorizations
for the other commercial fisheries in table 1 will continue unchanged
and effective until the end of the 3-year period.
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 are not likely to jeopardize
the continued existence of any species listed under the ESA, or destroy
or adversely modify designated critical habitat of any ESA-listed
species. The effects of these four commercial fisheries on ESA-listed
marine mammals in table 1, were analyzed in the appropriate ESA section
7 Biological Opinions on the commercial fishery, and incidental take
was exempted under the ESA for those ESA-listed marine mammals for each
of these fisheries in accordance with the Biological Opinions'
incidental take statement. 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, exempt take
of ESA-listed species that is reasonably certain to occur, 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, do 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 these permits 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 these permits. Issuing the permits would have no additional impact
on the human environment or effects on threatened or endangered species
beyond those analyzed in these documents.
Comments and Responses
On March 5, 2024, NMFS published a notice and request for comments
in the Federal Register for the proposed issuance of permits under MMPA
section 101(a)(5)(E) (89 FR 15843). The public comment period closed on
April 4, 2024. NMFS received three comment letters on the proposed
issuance of the permits and underlying preliminary determinations. The
Center for Biological Diversity (CBD) opposed issuing the permits. In
addition, two comment letters (one in support of issuing the permits
and one opposed to issuing the permits) were submitted from members of
the public. Only responses to significant comments pertaining to the
proposed permits and preliminary determinations under MMPA section
101(a)(5)(E) are addressed below.
Comment 1: CBD comments that NMFS has not developed TRPs for most
of the stocks in the proposed permits as required under MMPA section
101(a)(5)(E). They further comment that the MMPA's goal is to reduce M/
SI for a strategic stock from all commercial fishing operations and
state that not all the stocks in the proposed permits are approaching a
zero M/SI rate.
Response: The MMPA's short-term goal of a TRP is to reduce M/SI of
marine mammals incidentally taken in commercial fisheries to levels
below a stock's PBR. The MMPA's long-term goal is to reduce M/SI of
marine mammals incidentally taken in commercial fisheries to levels
below the insignificant threshold, defined by NMFS as 10 percent of a
stock's PBR level (50 CFR 229.2). Both the AK Bering Sea, Aleutian
Islands flatfish trawl and AK Bering Sea, Aleutian Islands pollock
trawl fisheries, for the affected marine mammals species or stocks
(table 1) have met the long-term goals of a TRP (i.e., M/SI of marine
mammals incidentally taken in these fisheries is below the
insignificant threshold, which is 10 percent of a stock's PBR level)
(see Take Reduction Plans section).
Before convening a TRT, it is critical to have a sufficient level
of data on abundance and mortality available to inform TRT discussions
and support successful TRP development (16 U.S.C. 1387(f)(4)). At a
minimum, abundance and observer data are needed to estimate
[[Page 50277]]
PBR and commercial fishery-related M/SI levels, which are used to
determine TRP goals and whether those goals have been met (16 U.S.C.
1387(f)(2)). Without this crucial information, a TRT is not able to
make informed decisions and meaningful recommendations to NMFS.
Moreover, if abundance and stock structure data are substantially
biased, it could result in an ineffective TRP (e.g., measures developed
and implemented are not sufficient to reduce M/SI of a stock and stock
declines or lack of recovery could continue). Thus, the first step in
development of a TRP, prior to convening a TRT, is to ensure the
availability of critical underlying data.
There are key technical uncertainties in the current North Pacific
sperm whale SAR that must be addressed. In general, sperm whales'
unusual hierarchical social and population structure present
difficulties in modeling population dynamics and estimating abundance
given their deep diving behavior. There is little current information
about the broad-scale distribution of sperm whales in Alaska waters,
and a ``reliable'' abundance estimate for the entire stock is
considered unavailable because the abundance data is more than 8 years
old (see Muto et al. 2021). Further, determining the relationship
between high latitude large males (such as those present in Alaska
waters) to breeding groups is essential to understanding population
dynamics, and whether the current stock contains one or more
demographically independent populations. As discussed above, the
current North Pacific sperm whale abundance estimate is based on a
small portion of the population (largely males) and therefore, the data
to evaluate the impact of commercial fisheries on this population is
substantially biased. NMFS is taking the necessary steps to address
these uncertainties and will review and revise the North Pacific sperm
whale SAR in accordance with section 117(c) of the MMPA (16 U.S.C.
1386(c)).
Most recently, in April 2024 at the 69th Scientific Committee
(SC69B) meeting of the International Whaling Commission (IWC), NMFS
scientists on the U.S. delegation to the IWC Scientific Committee
proposed a workshop to conduct an assessment of sperm whale populations
in the Eastern North Pacific. The Scientific Committee recognized that
it has been almost 20 years since the last effort to assess the status
of North Pacific sperm whale population and agreed to establish an
intersessional correspondence group to help assess available data for a
North Pacific sperm whale assessment and develop a workshop proposal.
This work is necessary to prepare for a future in-depth assessment of
North Pacific sperm whales under the auspices of the IWC, which would
inform the work of a TRT. Following the process described in NMFS
Procedural Directive 02-204-03 Reviewing and Designating Stocks and
Issuing Stock Assessment Reports under the Marine Mammal Protection Act
(NMFS 2019), NMFS is investigating whether the existing North Pacific
stock of sperm whales constitutes one or more demographically
independent populations, which, depending on the findings, could lead
to a revised stock structure for North Pacific stock of sperm whales.
Therefore, and as described in the Take Reduction Plan sections of
the proposed permits (89 FR 15843, March 5, 2024), and this Federal
Register notice, all of the evaluated fisheries listed in table 1, for
the affected marine mammal species or stocks, have a TRP in place,
achieved the long-term goal of TRPs (see 16 U.S.C. 1387(f)(2)), or
implementation of a TRP is under development and will progress as
information gaps are addressed. Accordingly, the requirement under MMPA
section 118 to have TRPs in place or in development is satisfied.
Comment 2: CBD states that the NITs defined in NMFS' ``Criteria for
Determining Negligible Impact under MMPA section 101(a)(5)(E)'' are set
at the same level as PBR and are insufficiently protective. They
further commented that NMFS misreported the mean estimated annual M/SI
of MHI false killer whales in the HI deep-set longline fishery (0.3),
and that the correct value should be 0.1. CBD requests NMFS set a
negligible impact threshold lower than PBR and evaluate whether the
correct M/SI exceeds that threshold.
Response: CBD's comments on the NITs as described in NMFS'
``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>. NMFS reviewed the M/SI information
provided by CBD and revised the NID analysis for the HI deep-set
longline fishery using the most recent data in the draft 2023 SAR
(Carretta et al. In press). The total annual average human caused M/SI
for the MHI insular stock of false killer whale (0.1) does not exceed
NIT<INF>t</INF> (0.258). Using the revised NID analysis results in the
same NID as in the proposed permit for the HI deep-set longline
fishery. The Tier 1 analysis is satisfied, and all commercial fisheries
are considered to have a negligible impact on this stock (see
accompanying MMPA 101(a)(5)(E) evaluation document).
Comment 3: CBD comments that NMFS did not use the correct abundance
estimate for the Western North Pacific stock of humpback whale in the
NID analyses for the proposed permits. They state NMFS used a
N<INF>min</INF> of 1,007, which is for the entire Western North Pacific
humpback whale population, instead of the N<INF>min</INF> of 75 for the
portion of Western North Pacific humpback whale population in U.S
waters.
Response: NMFS disagrees. While NMFS' procedural directive
``Criteria for Determining Negligible Impact under MMPA section
101(a)(5)(E)'' does not specify that the N<INF>min</INF> used in the
analysis be the N<INF>min</INF> for U.S. waters, section 101(a)(5)(E)
requires ``the incidental mortality and serious injury from commercial
fisheries will have a negligible impact on such species or stock.'' 16
U.S.C. 1371(a)(5)(E)(i)(I). Consistent with this statutory requirement,
NMFS used N<INF>min</INF> for the Western North Pacific stock of
humpback whale. As noted in the Federal Register notice for the
proposed permits (89 FR 15843, March 5, 2024), the Western North
Pacific stock of humpback whale is a transboundary stock. 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. NMFS conducted the Tier 2 NIT<INF>s</INF> analysis using the
stock wide N<INF>min</INF> (1,007) for the Western North Pacific
humpback whale given that 2022 SAR provides some M/SI data for
commercial fisheries outside of U.S waters.
Comment 4: CBD states that NMFS estimated fishery M/SI in U.S.
waters and only assigned 2 out of every 100 humpback whale M/SI to the
Western North Pacific stock of humpback whales instead of assigning
each M/SI to each humpback whale stock. CDB asserts that NMFS did not
discuss the potential for underestimated stock-specific M/SI when
partitioning M/SI among overlapping stocks in the SAR, as required by
the Guidelines for Assessing Marine Mammal Stocks (GAMMS).
Response: Insofar as CBD alleges NMFS used the incorrect M/SI value
in its NID analysis, NMFS disagrees. The NID analysis and 101(a)(5)(E)
permit evaluation are based on the best scientific information
available as summarized in the published SARs. The
[[Page 50278]]
process of apportioning M/SI in areas with overlapping stocks is part
of the SAR process, which includes review by a statutorily established
scientific review group and its own opportunity for public review and
comment (see 16 U.S.C. 1386(b),(d); 88 FR 4162, Jan. 24, 2023; 88 FR
54592, August 11, 2023).
Comment 5: CBD asserts that NMFS did not adequately explain why the
N<INF>min</INF> and PBR from the SAR were not used for the NID analysis
for the AK Gulf of Alaska sablefish longline fishery. They state that
the NID analysis for the North Pacific stock of sperm whale
incidentally killed or injured in the AK Gulf of Alaska sablefish
longline fishery ignores the SAR's N<INF>min</INF> and PBR. The North
Pacific sperm whale SAR includes a N<INF>min</INF> of 244 and PBR of
0.5; however, the NID analysis uses a threshold abundance of 4,230.8
sperm whales. CBD notes that just because the estimate of 244 sperm
whales is an underestimate does not mean that the estimate is
``unavailable'' and does not warrant an alternative calculation in the
NID analysis. They continue further that the SAR caveats the PBR by
stating it ``does not account for females and juveniles in tropical and
subtropical waters,'' but that since the fishery operates in the Gulf
of Alaska it is not reasonable to compare M/SI in U.S waters to the
population as a whole.
Response: Following the GAMMS, NMFS publishes all known population
estimates and calculates a PBR wherever possible in the SARs. However,
in some cases, the abundance estimate and corresponding N<INF>min</INF>
are only a small portion of the stock's range and/or are not
representative for other reasons. In the case of the North Pacific
stock of sperm whale, a ``reliable'' abundance estimate for the entire
stock is considered unavailable because the abundance data is more than
8 years old (see Muto et al. 2021). Additionally, N<INF>min</INF> is
considered an underestimate for the entire stock because surveys are
from only a small portion of the stock's range and it does not take
into account females and juveniles in tropical and subtropical waters
(see Muto et al. 2021). The calculated PBR (0.5 animals) for this stock
is deemed ``not reliable'' as an index for the entire stock and is
generally not used for management purposes for the entire stock (see
Muto et al. 2021). Therefore, we considered N<INF>min</INF> unavailable
for the purpose of the NID. In accordance with NMFS' ``Criteria for
Determining Negligible Impact under MMPA section 101(a)(5)(E)'', the
NIT<INF>s</INF> threshold approach is used in the NID analysis where no
estimate of N<INF>min</INF> is available, which indicates that a
minimum N<INF>min</INF> threshold of 4,230 must be likely for the stock
in order to arrive at a NID.
Comment 6: CBD comments that total human-caused M/SI of the Western
North Pacific stock of humpback whale exceeds the stock-wide PBR (3.4).
In addition, they state NMFS has not estimated undocumented M/SI for
the stock in the summer or winter feeding areas. CBD asserts that U.S.
commercial fisheries incidentally killed or injured 5.27 humpback
whales (Western North Pacific, Hawai'i and Mexico-North Pacific stocks)
in 5 years. CBD further used NMFS' apportionment method to note that
the estimated M/SI of Western North Pacific humpback whales is 0.02108,
which exceeds 10 percent of the stock's PBR in U.S. waters and cannot
be considered insignificant and approaching a zero M/SI rate.
Response: NMFS follows a standardized process for estimating annual
fishery M/SI in the SARs. As noted by CBD, M/SI of humpback whales in
Alaska is allocated using the ``NMFS, Alaska Region Occurrence of
Endangered Species Act (ESA) Listed Humpback Whales off Alaska''
guidance document. However, in cases where the stock origin is known,
such as for the December 23, 2020 humpback whale serious injury
documented in Mexico, the M/SI is assigned only to the confirmed stock
and not allocated to all stocks. CBD incorrectly included this Mexico
M/SI in their M/SI estimation for Western North Pacific stock humpback
whales. Removing the M/SI from the Mexico North Pacific stock from the
calculation results in a mean annual commercial fisheries mortality of
Western North Pacific stock of 0.012 and is less than 10 percent of
PBR. Further, when we include the October 15, 2018 entanglement where
the whale was released from gear by trained responders (but is not
included in the SAR because the outcome is expected to be a non-serious
injury after intervention), the total mean annual commercial fisheries
mortality of Western North Pacific stock is 0.016 and is less than 10
percent of PBR.
As noted above, the most recent SAR for the Western North Pacific
stock of humpback whale includes fishery-related M/SI not assigned to a
specific commercial fishery. This unattributed fishery-related M/SI
could be from any number of commercial, recreational, or subsistence
fisheries, including fisheries listed in table 1. 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 NID Tier 2 analysis. NMFS is actively
monitoring the fisheries in table 1 through fishery observer programs.
If additional fishery-related M/SI is documented through the observer
programs that indicate additional M/SI of the Western North Pacific
stock of humpback whale, then NMFS will re-evaluate the appropriate NID
and the permit.
References
Carretta, J.W., E.M. Oleson, K.A. Forney, M.M. Muto, D.W. Weller,
A.R. Lang, J. Baker, B. Hanson, A.J. Orr, J. Barlow, J.E. Moore, and
R.L. Brownell. In Press. Draft U.S. Pacific Marine Mammal Stock
Assessments: 2023. U.S. Department of Commerce.
Mesnick, S.L., B.L. Taylor, F.I. Archer, K.K. Martien, SE Trevino,
B.L. Hancock-Hanser, S.C. Moreno Medina, V.L. Pease, K.M. Robertson,
J.M. Straley, R.W. Baird, J. Calambokidis, G.S. Schorr, P. Wade, V.
Burkanov, C.R. Lunsford, L. Rendell, and P.A. Morin. 2011. Sperm
whale population structure in the eastern and central North Pacific
inferred by the use of single-nucleotide polymorphisms,
microsatellites and mitochondrial DNA. Molecular Ecology Resources,
11(S1), 278-298.
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). 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>.
NMFS. 2019. Reviewing and Designating Stocks and Issuing Stock
Assessment Reports under the Marine Mammal Protection Act Protection
Act. Protected Resources Policy 02-204-03. <a href="https://media.fisheries.noaa.gov/dam-migration/02-204-03.pdf">https://media.fisheries.noaa.gov/dam-migration/02-204-03.pdf</a>.
Young, N.C, M.M. Muto, 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 Alexandre N. Zerbini. 2023. Alaska Marine
Mammal Stock Assessments 2022. U.S. Department of
[[Page 50279]]
Commerce. NOAA Technical Memorandum NMFS-AFSC-474, 316 p.
Young, N.C., Brower, A.A., Muto, M.M., Freed, J.C., Angliss, R.P.,
Friday, B.D. Birkemeier, N.A., Boveng, P.L., Brost, B.M., Cameron,
M.F., Crance, J.L., Dahle, S.P., Fadely, B.S., Ferguson, M.C.,
Goetz, K.T., London, Oleson, E.M., J.M., Ream, R.R., Richmond, E.L.,
Shelden, K.E.W., Sweeney, K.L., Towell, R.G., Wade, P.R., Waite,
J.M., and Zerbini, A.N. In Press. Draft Alaska marine mammal stock
assessments, 2023. U.S. Department of Commerce.
Dated: June 7, 2024.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2024-12938 Filed 6-12-24; 8:45 am]
BILLING CODE 3510-22-P
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