Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit, 26751-26756 [2013-10913]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 89 (Wednesday, May 8, 2013)]
[Notices]
[Pages 26751-26756]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10913]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC645


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; request for comments.

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SUMMARY: NMFS plans to issue a permit for a period of three years to 
authorize the incidental, but not intentional, taking of three stocks 
of marine mammals listed as threatened or endangered under the 
Endangered Species Act (ESA) by the California (CA) thresher shark/
swordfish drift gillnet (DGN) fishery (>=14 inch mesh) and the 
Washington/Oregon/California (WA/OR/CA) sablefish pot fishery. In 
accordance with the Marine Mammal Protection Act (MMPA), NMFS has made 
a preliminary determination that incidental taking from commercial 
fishing will have a negligible impact on the endangered fin whale, CA/
OR/WA stock; humpback whale, CA/OR/WA stock; and sperm whale, CA/OR/WA 
stock. Recovery plans have been completed for these endangered species. 
This authorization is based on a determination that this incidental 
take will have a negligible impact on the affected marine mammal 
stocks. NMFS must issue this permit provided that we can make the 
determinations that: the incidental take will have a negligible impact 
on the affected marine mammal stocks; a recovery plan for all affected 
stocks of threatened or endangered marine mammals has been developed or 
is being developed; and as required by the MMPA, a take reduction plan 
and monitoring program have been implemented and vessels in the CA 
thresher shark/swordfish DGN fishery (>=14 inch mesh) and WA/OR/CA 
sablefish pot fishery are registered. NMFS solicits public comments on 
the draft negligible impact determination and on the proposal to issue 
a permit to these fisheries for the taking of affected threatened or 
endangered stocks of marine mammals.

DATES: Comments must be received by June 7, 2013.

ADDRESSES: A draft of the negligible impact determination is available 
on the Internet at the following addresses: https://swr.nmfs.noaa.gov/. 
Recovery plans for these species are available on the Internet at the 
following address: https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals.
    You may submit comments, identified by NOAA-NMFS-2013-0073, by any 
of the following methods:
    Electronic Submissions: Submit all electronic public comments via 
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0073, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
    Mail: Send comments or requests for copies of reports to: Chris 
Yates, Assistant Regional Administrator, Protected Resources Division, 
Southwest Region, NMFS, 501 W Ocean Blvd., Suite 4200, Long Beach, CA 
90802 Comments may also be faxed to (562) 980-4027.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter N/A in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Monica DeAngelis, NMFS Southwest

[[Page 26752]]

Region, (562) 980-3232, or Shannon Bettridge, NMFS Office of Protected 
Resources, (301) 427-8402.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(E) of the Marine Mammal Protection Act (MMPA), 16 
U.S.C. 1361 et seq., states that NOAA's National Marine Fisheries 
Service (NMFS), as delegated by the Secretary of Commerce, shall for a 
period of up to three years allow the incidental taking of marine 
mammal species listed under the Endangered Species Act (ESA), 16 U.S.C. 
1531 et seq., by persons using vessels of the United States and those 
vessels which have valid fishing permits issued by the Secretary in 
accordance with section 204(b) of the Magnuson-Stevens Fishery 
Conservation and Management Act, 16 U.S.C. 1824(b), while engaging in 
commercial fishing operations, if NMFS makes certain determinations. 
NMFS must first determine, after notice and opportunity for public 
comment, that: (1) Incidental mortality and serious injury 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.
    NMFS is considering the issuance of a permit under MMPA section 
101(a)(5)(E) to vessels registered in the CA thresher shark/swordfish 
DGN fishery (>=14 inch mesh) and the WA/OR/CA sablefish pot fishery 
(both Federal Category II fisheries) to incidentally take three stocks 
of threatened or endangered marine mammals: the CA/OR/WA stock of fin 
whales (Balaenoptera physalus), the CA/OR/WA stock of humpback whales 
(Megaptera novaeangliae), and the CA/OR/WA stock of sperm whales 
(Physeter macrocephalus). A history of MMPA section 101(a)(5)(E) 
permits related to these stocks was included in previous notices for 
other permits to take threatened or endangered marine mammals 
incidental to commercial fishing (e.g. 72 FR 60814; October 26, 2007). 
The data for considering these authorizations were reviewed coincident 
with the preparation of the 2012 MMPA List of Fisheries (LOF or List) 
(76 FR 73912; November 29, 2011), the 2011 marine mammal stock 
assessment reports (SARs) (Carretta et al. 2012; Allen and Angliss 
2011), the Fishery Management Plan (FMP) for U.S. West Coast Fisheries 
for Highly Migratory Species (HMS), recovery plans for these species 
(available on the Internet at the following address: https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals), and other relevant 
sources.
    Based on observer data and marine mammal reporting forms, the 
California thresher shark/swordfish drift gillnet fishery (>=14 in 
mesh) and the Washington/Oregon/California sablefish pot fishery are 
the Category II fisheries that operate in the ranges of affected 
stocks, namely the CA/OR/WA stocks of fin, sperm whales, and humpback 
whales, and are currently considered for authorization. A detailed 
description of these fisheries can be found below. All other Category 
II fisheries that interact with the marine mammal stocks observed off 
the coasts of Washington, Oregon, and California are State-managed and 
are not considered for authorization under this permit. NMFS calculated 
the total human-related serious injury and mortality to make a 
negligible impact determination for this proposed authorization and 
included all human sources, such as commercial fisheries and ship 
strikes. There are no fisheries classified as Category I fisheries that 
interact with the marine mammal stocks observed off the coasts of 
Washington, Oregon, or California. Participants in Category III 
fisheries are not required to obtain incidental take permits under MMPA 
section 101(a)(5)(E), but are required to report injuries or mortality 
of marine mammals incidental to their operations.

Basis for Determining Negligible Impact

    Prior to issuing a permit to take ESA-listed marine mammals 
incidental to commercial fishing, NMFS must determine if mortality and 
serious injury incidental to commercial fisheries will have a 
negligible impact on the affected species or stocks of marine mammals. 
NMFS satisfied this requirement through completion of a draft 
negligible impact determination (NID). NMFS clarifies that incidental 
mortality and serious injury include only direct mortality and serious 
injury, such as from entanglement or hooking in fishing gear. Indirect 
effects, such as the effects of removing prey from habitat, are not 
included in this analysis. A biological opinion prepared under ESA 
section 7 considers direct and indirect effects of Federal actions and, 
thus, contains a broader scope of analysis than is required by MMPA 
section 101(a)(5)(E).
    Section 101(a)(5)(E) of the MMPA requires the authorization of the 
incidental taking of individuals from marine mammal stocks listed as 
threatened or endangered under the ESA in the course of commercial 
fishing operations if NMFS determines, among other things, that 
incidental mortality and serious injury will have a negligible impact 
on the affected species or stock. Although the MMPA does not define 
``negligible impact,'' NMFS has issued regulations providing a 
qualitative definition of ``negligible impact,'' as defined in 50 CFR 
216.103 and, through scientific analysis, peer review, and public 
notice, developed a quantitative approach and as it applies here is, 
``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.'' The development of the approach and process 
was outlined in detail in the current draft NID made available through 
this notice and was included in previous notices for other permits to 
take threatened or endangered marine mammals incidental to commercial 
fishing (e.g. 72 FR 60814; October 26, 2007; for the CA/OR/WA stock of 
fin, humpback, and sperm whales).

Criteria for Determining Negligible Impact

    In 1999 NMFS adopted criteria for making negligible impact 
determinations for MMPA 101(a)(5)(E) permits (64 FR 28800; May 27, 
1999). In applying the 1999 criteria to determine whether mortality and 
serious injury incidental to commercial fisheries will have a 
negligible impact on a listed marine mammal stock, Criterion 1 (total 
human-related serious injury and mortality are less than 0.1 potential 
biological removal level (PBR)) is the starting point for analysis. If 
this criterion is satisfied (i.e., total human-related serious injuries 
and mortality are less than 0.1 PBR), the analysis would be concluded, 
and the impact would be determined to be negligible. The remaining 
criteria describe alternatives under certain conditions, such as 
fishery mortality below the negligible threshold but other human-caused 
mortality above the threshold or fishery and other human-caused 
mortality between the negligible threshold and PBR for a stock that is 
increasing or stable. If Criterion 1 is not satisfied, NMFS may use one 
of the other criteria as appropriate. Criterion 2 is satisfied if the 
total human-related serious injury and mortality are greater than PBR, 
and fisheries-related mortality is less than

[[Page 26753]]

0.1 PBR. If Criterion 2 is satisfied, individual fisheries may be 
permitted if management measures are being taken to address non-
fisheries-related serious injuries and mortality. Criterion 3 is 
satisfied if total fisheries-related serious injury and mortality are 
greater than 0.1 PBR and less than PBR and the population is stable or 
increasing, fisheries may be permitted subject to individual review and 
certainty of data. Criterion 4 stipulates that if the population 
abundance of a stock is declining, the threshold level of 0.1 PBR will 
continue to be used. Criterion 5 states that if total fisheries-related 
serious injuries and mortalities are greater than PBR, permits may not 
be issued.
    We used two time frames for this analysis. The first time frame for 
the data used in this analysis is from 1998 (the first full year post-
Take Reduction Plan implementation (October 30, 1997)), through 
December 31, 2011. This 14-year time frame was chosen initially because 
after the Pacific Offshore Cetacean Take Reduction Plan (POCTRP) was 
implemented, regulations required skippers to use at least 36' 
extenders and pingers in the CA thresher shark/swordfish DGN fishery 
(>=14 inch mesh), which is considered to have reduced the incidental 
take of many marine mammal species, particularly cetaceans (Carretta 
and Barlow 2011). This time frame also provided a comprehensive look at 
all of the fisheries, including the WA/OR/CA sablefish pot fishery, 
given changes in oceanographic conditions, fishing practices, and 
reporting and stranding records. The 2001 time/area closure of the CA 
thresher shark/swordfish DGN fishery (>=14 inch mesh) off central and 
northern California/southern Oregon is also encompassed in this time 
frame. The second time frame for the data used in this analysis 
includes the most recent five-year period (January 1, 2007 through 
December 31, 2011). A five-year time frame provides enough data to 
adequately capture year-to-year variations in take levels, while 
reflecting current environmental and fishing conditions as they may 
change over time. Additionally, because the permit issued under MMPA 
section 101(a)(5)(E) is for a three-year period, the most up-to-date 
data available for complete years is used (i.e., 2007-2011).
    A conservative, or precautionary, approach is taken in these 
analyses for evaluating the negligible impact of fisheries and other 
sources of injury or mortality, such as ship strikes, on these stocks, 
so in certain cases, the maximum number was used for the calculations. 
For example, if a ship strike occurred, but serious injury or mortality 
was not observed on scene or confirmed by necropsy of the stranded 
animal, and if further review of reports and other sources then 
confirmed serious injury/mortality, it was assumed for purposes of this 
analysis, that serious injury/mortality occurred, and was included in 
the total number used in the calculation. Furthermore, in using two 
time frames for the negligible impact analyses (1998-2011 and 2007-
2011), we took a precautionary approach by ensuring that a negligible 
impact determination could be made for both time frames considered.

Negligible Impact Determinations

    In considering the appropriate criteria for determining whether 
commercial fisheries off the U.S. west coast are having a negligible 
impact on the CA/OR/WA stocks of fin whales, humpback whales, and sperm 
whales, a summary of the negligible impact determinations follows.

Criterion 1 Analysis

    Criterion 1 would be satisfied if the total human-related serious 
injury and mortality are less than PBR.
     The 14-year (1998-2011) annual average serious injury and 
mortality to the CA/OR/WA stock of fin whales from all human-caused 
sources is 1.43, or 8.93% of the PBR. The 5-year (2007-2011) annual 
average annual average serious injury and mortality from all human-
caused sources is 2.2 or 13.8% of the PBR. The total annual human-
related serious injury and mortality for this stock of fin whales is 
not less than 0.1 PBR for both time frames considered.
     The 14-year (1998-2011) average annual serious injury and 
mortality to the CA/OR/WA stock of humpback whales from all human 
sources is 4.31, or 38.2% of the PBR. The 5-year (2007-2011) average 
annual human-caused mortality or serious injury is 7.2 or 63.7% of the 
PBR. The total annual human-related serious injury and mortality for 
this stock of humpback whales is not less than 0.1 PBR for both time 
frames considered.
     The 14-year (1998-2011) average annual serious injury and 
mortality to the CA/OR/WA stock of sperm whales from all human sources 
is 0.79, or 52.6% of the PBR. The 5-year (2007-2011) average annual 
human-caused mortality or serious injury is 1.4 or 93.3% of the PBR. 
The total annual human-related serious injury and mortality for this 
stock of sperm whales is not less than 0.1 PBR for both time frames 
considered.
    Criterion 1 was not satisfied because the total annual human-
related serious injury for fin, humpback, and sperm whales are not less 
than 0.1 PBR of each stock for both time frames considered. As a 
result, the other criteria must be examined for the CA/OR/WA fin, 
humpback, and sperm whale stocks.

Criterion 2 Analysis

    Criterion 2 would be satisfied if the total human-related serious 
injury and mortality are greater than PBR, and fisheries-related 
mortality is less than 0.1 PBR. This criterion was not satisfied 
because total human-related serious injury and mortality (detailed 
above) is less than PBR, and total fisheries-related mortality 
(detailed below) is greater than 0.1 PBR for each stock (both time 
frames analyzed).

Criterion 3 Analysis

    Unlike Criteria 1 and 2, which examine total human-caused serious 
injury and mortality relative to PBR, Criterion 3 compares total 
fisheries-related serious injury and mortality to PBR. Criterion 3 
would be satisfied if the total fisheries-related serious injury and 
mortality (including state and federal fisheries) is greater than 0.1 
PBR and less than 1.0 PBR for each stock, for each time frame 
considered and the populations of these stocks are considered to be 
stable or increasing.
    The total fishery-related mortality and serious injury is a small 
portion of the CA/OR/WA fin whale stock's PBR (of 16): 3.8% of PBR for 
the 5-year average from 2007-2011, and 1.8% of PBR for the 14-year 
average from 1998-2011. The CA/OR/WA fin whale stock's PBR is 
calculated using a recovery factor of 0.3, and a minimum population 
size of 2,624; this population is growing at a rate of about 3%/year (a 
little less than the default maximum net growth rate for cetaceans of 
4%). The likelihood that fin whales will be taken by the CA thresher 
shark/swordfish and/or WA/OR/CA sablefish pot fishery is low. 
Accordingly, Criterion 3 is satisfied for both time frames analyzed in 
determining that mortality and serious injuries of the CA/OR/WA fin 
whale stock incidental to commercial fishing would have a negligible 
impact on the stock because of individual review of data regarding the 
stock, including increased growth rate of the stock, limited increases 
in serious injury and mortality due to the relevant fisheries, and the 
level of human-caused mortality and serious injury is below the 
estimated PBR.
    The fishery-related mortality and serious injury from all 
commercial fisheries for the CA/OR/WA humpback

[[Page 26754]]

whale stock is estimated at 53.1% of PBR (of 11.3) for the 5-year 
average from 2007-2011, and 31.9% of PBR for the 14-year average from 
1998-2011. A total of two humpback whales were observed, estimated or 
assumed to have either been killed or injured in the two fisheries 
considered in this authorization, the CA thresher shark/swordfish DGN 
fishery and WA/OR/CA sablefish pot fishery, which is a small portion of 
the stock's PBR, which is calculated using a recovery factor of 0.3. 
The minimum population size is 1,878 and is growing at a rate of about 
4%/year which is equal to the default maximum growth rate for cetaceans 
(4%). Accordingly, Criterion 3 is satisfied for both time frames 
analyzed in determining that mortality and serious injuries of the CA/
OR/WA humpback whale stock incidental to commercial fishing would have 
a negligible impact on the stock because of individual review of data 
regarding the stock, including increased growth rate of the stock, 
limited increases in serious injury and mortality due to the relevant 
fisheries, and the level of human-caused mortality and serious injury 
is below the estimated PBR.
    The fishery-related mortality and serious injury from all 
commercial fisheries for the CA/OR/WA sperm whale stock is estimated at 
66.7% of PBR (of 1.5) for the 5-year average from 2007-2011, and 33.3% 
of PBR for the 14-year average from 1998-2011. A total of three sperm 
whales were observed, estimated or assumed to have either been killed 
or injured in the CA thresher shark/swordfish DGN fishery since 1998 
and none have interacted with the WA/OR/CA sablefish pot fishery. The 
most recent population abundance estimate from 2008 is the lowest to 
date, in sharp contrast to the highest abundance estimate obtained from 
2001 and 2005 surveys. However, there is no reason to believe that the 
population has declined; the most recent survey likely reflects inter-
annual variability with the study area. Sperm whale distribution and 
relative abundance may be correlated to the abundance of their main 
prey items and the population of the CA/OR/WA sperm whale stock has 
fluctuated since 1979/80 without apparent trend and appears relatively 
stable. The stock's PBR is calculated using a recovery factor of 0.1 
(with a long term-average mortality and serious injury equal to PBR, 
90% of the stock's net annual production would be reserved for 
recovery). The minimum population size is about 751 and is growing at a 
rate of about 2%/year which is one half of the default maximum growth 
rate for cetaceans (4%). Also, the infrequency of sperm whale 
interactions with the CA thresher shark/swordfish DGN fishery in the 
last 14 years (1998-2011) indicates that the likelihood that another 
sperm whale would be taken by this fishery is low (sperm whales have 
not interacted WA/OR/CA sablefish pot fishery). Thus, based on this 
information and the applicability of Criterion 3, NMFS determines that 
the mortality and serious injury incidental to commercial fisheries 
will have a negligible impact on the CA/OR/WA stock of sperm whales for 
both time frames analyzed.
    In conclusion, based on the criteria outlined in 1999 (64 FR 
28800), the 2011 Pacific SARs (Carretta et al. 2012) and the best 
scientific information and data available, NMFS has determined that for 
a period of up to three years, mortality and serious injury incidental 
to the CA thresher shark/swordfish DGN fishery and the WA/OR/CA 
sablefish pot fishery will have a negligible impact on the CA/OR/WA 
stock of sperm whales, the CA/OR/WA stock of humpback whales, and the 
CA/OR/WA stock of fin whales (i.e., the total fisheries-related serious 
injury and mortality is greater than 0.1 PBR and less than PBR for both 
time periods and the populations of these stocks are considered to be 
stable or increasing). Therefore, these identified commercial fisheries 
within the range of the CA/OR/WA fin, humpback, and sperm whale stocks 
may be permitted subject to their individual review and the certainty 
of relevant data, and provided that the other provisions of section 
101(a)(5)(E) are met.

Description of Fisheries

    The following are the Federally-authorized fisheries classified as 
Category II in the 2011 LOF, which are known to seriously injure or 
kill ESA-listed marine mammals incidental to commercial fishing 
operations. Detailed descriptions of those fisheries can be found in 
the NMFS (2012a) Final Biological Opinion on the groundfish fishery 
management plan, dated December 7, 2012, for the fisheries addressed in 
that Biological Opinion; the NMFS (2012b) draft Biological Opinion for 
the CA thresher shark/swordfish DGN fishery (=14 inch mesh; 
currently in preparation; the final SARs (Carretta et al. 2012; Allen 
and Angliss 2011); and the draft NID (https://swr.nmfs.noaa.gov/). 
Certain aspects of the fisheries may be altered due to reasonable and 
prudent alternatives included in each of the biological opinions; 
however, these changes in fishing operations are not expected to result 
in increased levels of mortality and serious injury of marine mammals, 
including threatened and endangered species. CA thresher shark/
swordfish DGN fishery (=14 inch mesh)
    Participants in the CA thresher shark/swordfish DGN fishery 
(=14 in mesh) are also required to have a valid permit 
issued annually by the California Department of Fish and Wildlife. In 
accordance with MMPA section 118(c), only those vessels in the CA 
thresher shark/swordfish DGN fishery (=14 inch mesh) that 
have registered for a Marine Mammal Authorization Permit are authorized 
to take marine mammals incidental to their fishing operations. Vessels 
holding this permit must comply with the POCTRP and implementing 
regulations. Any vessel that violates regulations will be investigated. 
The estimate of the number of vessels in the fishery is a historical 
reference based upon the number of vessels that indicated intent to 
participate in the fishery and may not be an accurate estimate of the 
number of vessels actively engaged in fishing in any given year. The 
DGN fishery is a limited entry program, managed with gear, seasons, and 
area closures. The number of vessels participating in the CA thresher 
shark/swordfish DGN fishery (=14 inch mesh) has decreased. 
In 2010, there were 73 permits issued, but currently there are only 27 
active vessels (CDFG License and Revenue Branch, extracted July 14, 
2011).
    The CA thresher shark/swordfish DGN fishery targets swordfish and 
thresher shark. This fishery is a limited entry fishery with seasonal 
closures and gear restrictions. The CA thresher shark/swordfish DGN 
fishery operates outside of state waters to about 150 miles offshore 
ranging from the U.S./Mexico border in the south to the Oregon border 
in the north, depending on sea temperature conditions. Regulations 
restrict the fishery to waters outside 200 nm from February 1 through 
April 30, outside 75 nm from May 1 through August 14, and is allowed to 
fish inside 75 nm from August 15 through January 31. CA thresher shark/
swordfish DGN vessels when targeting swordfish tend to set on warm 
ocean water temperature breaks, which do not appear along the 
California coast until late summer; therefore, because of these 
restrictions, vessels are not active during February, March, and April, 
and very little fishing effort occurs during the months of May, June, 
and July.
    In 2001, a seasonal (15 August-15 November) area closure was 
implemented in the thresher shark/swordfish DGN fishery north of Point 
Conception, to protect leatherback

[[Page 26755]]

turtles that feed in the area and were observed entangled in previous 
fishing seasons. Additional seasonal/area closures in southern 
California have been established in the thresher shark/swordfish DGN 
fishery to protect loggerhead turtles during a forecast or occurring El 
Ni[ntilde]o event during the months of June, July and/or August. 
Information on the number of active permit holders was obtained from 
the ``Status of the U.S. west coast fisheries for Highly Migratory 
Species through 2004; Stock Assessment and Fishery Evaluation'' report, 
available from the Pacific Fishery Management Council Web site 
(www.pcouncil.org).
    The NMFS's Southwest Region has operated an at-sea observer program 
in the CA thresher shark/swordfish DGN fishery since July 1990 to the 
present, and the California Department of Fish and Wildlife had 
operated a DGN observer program from 1980-90. The objectives of the 
NMFS Observer Program are to record, among other things, information on 
non-target fish species and protected species interactions. Information 
regarding the thresher shark/swordfish DGN fishery interactions with 
listed marine mammal species was drawn from Observer Program records 
for the calendar years 1990-2011 (NMFS 2012). Observer coverage of the 
thresher shark/swordfish DGN fleet targets 20 percent of the annual 
sets made in the fishery, with close to 100 percent of net retrievals 
monitored on observed trips for, among other things, species 
identification and enumeration.

WA/OR/CA Sablefish Pot Fishery

    The WA/OR/CA sablefish pot fishery targets sablefish using 
trapezoid, conical, or rectangular steel frame traps (NMFS 2005), 
wrapped with 3.5 inch nylon webbing. The fishery generally sets gear in 
waters past the 100 fathom curve off the west coast of the U.S. The 
fishery is managed under regulations implementing the West Coast 
Groundfish FMP developed by the Pacific Fishery Management Council. 
There are two separate trap fisheries for sablefish, limited entry and 
open access. The limited entry fishery is further divided into: (1) 
Vessels fishing in the limited entry fixed gear fishery with a limited 
entry permit endorsed for pot and/or longline gear, and (2) since 2011, 
vessels fishing in the limited entry trawl fishery with a limited entry 
permit endorsed for trawl gear but fishing with ``non-trawl'' gear 
including pot gear (called ``gear switching'' in the trawl fishery's 
Shore-based Individual Fishing Quota (IFQ) Program).
    The primary fishery, limited entry, is composed of a three tier 
system of cumulative landing quotas within a restricted season, from 
April 1 to October 31. Permits were assigned to a tier based on landing 
history when the system originally began in 1998. There are 32 limited 
entry permits issued for the sablefish trap fishery on the U.S. west 
coast (NWFSC 2010). Fishing outside of the primary season or after 
fulfillment of tier quota is allowed subject to daily and weekly trip 
limits (NWFSC 2010). The limited entry permits are currently associated 
with vessels spread throughout the Pacific Northwest from Northern 
California through Washington. Up to three permits may be stacked for 
cumulative landings on one vessel; including both trap and longline 
gear endorsements (NWFSC 2010). Accounting for stacking of permits, 
there were twenty-four vessels using traps to target sablefish in the 
2009 season, with seven of those vessels using traps only (NWFSC 2010). 
The other seventeen used a combination of traps and longline to catch 
their quota of sablefish.
    In addition to the limited entry fixed gear fishery, a vessel 
registered to a limited entry groundfish permit endorsed for trawl gear 
may fish in the Shorebased IFQ Program using pot gear (NMFS 2012 West 
Coast Groundfish IFQ Fishery Catch Summary 2011: First Look. Agenda 
Item F.6.b, Supplemental NMFS Report, March 2012 Pacific Fishery 
Management Council meeting). Using a gear other than trawl gear to fish 
in the Shorebased IFQ Program is called ``gear switching.'' The 
Shorebased IFQ Program began in 2011 and operates year round. In 2011, 
nine percent of the IFQ fishing trips were made by vessels using pot 
gear.
    The open access fishery is available to fishermen year round and is 
subject to weekly trip limits. The estimated number of current 
participants in the open access fishery is 309. NOAA's Northwest 
Fisheries Science Center estimates 123 fishermen, longline and trap 
combined, participated in the open access sector in 2009 based on a 
query of the fish ticket records in the PacFIN landings database (NWFSC 
2010).
    In California, a general trap permit is required for the open 
access sector for sablefish and gear is set outside 150 fathoms, with 
an average depth of 190 fathoms. South of Point Arguello, near Santa 
Barbara, the minimum depth for setting traps targeting sablefish is 200 
fathoms. There is no depth requirement north of Point Arguello. Daily 
logbook reporting is required by the state. Multiple traps are 
connected to a common ground line, 5/8th inch nylon line, at depths 
between 100 and 375 fathoms up to 600 fathoms with an average of 190 
fathoms in California (NMFS 2010). Traps are spaced on average 20 
fathoms apart, with a range of 15 to 40 fathoms (NMFS 2005). Limited 
entry permit holders will commonly fish 20 to 30 traps per string, as 
opposed to open access fishermen who fish several smaller strings of 
one to eight strings with three to four traps per string (NMFS 2010), 
each with a float line and buoy stick.

Conclusions for Proposed Permit

    Based on the above assessment and as described in the accompanying 
draft NID, NMFS concludes that the incidental mortality and serious 
injury from the CA thresher shark/swordfish DGN fishery (=14 
inch mesh) and the WA/OR/CA sablefish pot fishery will have a 
negligible impact on the CA/OR/WA stock of humpback whales, the CA/OR/
WA stock of fin whales, and the CA/OR/WA stock of sperm whales. The 
National Environmental Policy Act (NEPA) requires Federal agencies to 
evaluate the impacts of alternatives for their actions on the human 
environment. The impacts on the human environment of continuing and 
modifying the CA thresher shark/swordfish DGN fishery (=14 
inch mesh) (as part of the Highly Migratory Species fisheries) and the 
WA/OR/CA sablefish pot fishery (as part of the West Coast groundfish 
fisheries), including the taking of threatened and endangered species 
of marine mammals, were analyzed in: the Pacific Fishery Management 
Council Highly Migratory Species Fishery Management Plan final 
environmental impact statement (August 2003); the Pacific Fishery 
Management Council Proposed Harvest Specifications and Management 
Measures for the 2013-2014 Pacific Coast Groundfish Fishery and 
Amendment 21-2 to the Pacific Coast Fishery Management Plan (September 
2012); Risk assessment of U.S. West Coast groundfish fisheries to 
threatened and endangered marine species (NWFSC 2012); and in the Final 
Biological Opinion prepared for the West Coast groundfish fisheries 
(NMFS 2012a) and the draft Biological Opinion for the CA thresher 
shark/swordfish DGN fishery (=14 inch mesh) (NMFS 2012b), 
currently in preparation, pursuant to the ESA. Because this proposed 
permit would not modify any fishery operation and the effects of the 
fishery operations have been evaluated fully in accordance with NEPA, 
no additional NEPA analysis is required for this permit. Issuing the 
proposed permit would have no additional impact to the

[[Page 26756]]

human environment or effects on threatened or endangered species beyond 
those analyzed in these documents. NMFS now reviews the remaining 
requirements to issue a permit to take the subject listed species 
incidental to the CA thresher shark/swordfish DGN fishery 
(=14 inch mesh) and WA/OR/CA sablefish pot fisheries.

Recovery Plans

    Recovery Plans for humpback whales, fin whales, and sperm whales 
have been completed (see https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals). Accordingly, the requirement to have recovery plans 
in place or being developed 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. Further, section 118(c)(5)(A) 
provides that registration of vessels in fisheries should, after 
appropriate consultations, be integrated and coordinated to the maximum 
extent feasible with existing fisher licenses, registrations, and 
related programs. Participants in the CA thresher shark/swordfish DGN 
fishery (=14 inch mesh) and WA/OR/CA sablefish pot fisheries 
already provide the information needed by NMFS to register their 
vessels for the incidental take authorization under the MMPA either 
through the federal groundfish limited entry permit process of the 
federal Vessel Monitoring System. Therefore, vessel registration for an 
MMPA authorization is integrated through those programs in accordance 
with MMPA section 118.

Monitoring Program

    The CA thresher shark/swordfish DGN fishery ([gteqt]14 inch mesh) 
has been observed since the early 1990s. Levels of observer coverage 
vary over years but are adequate to produce reliable estimates of 
mortality and serious injury of listed species (e.g., from 2000-2010, 
coverage ranged from 12.0 to 22.9 percent). As part of the West Coast 
groundfish fishery and Magnuson-Stevens Fishery Conservation and 
Management Act objectives, the WA/OR/CA sablefish pot fishery, as 
managed under the groundfish FMP, is observed at about 1-6% per year. 
Accordingly, as required by MMPA section 118, a monitoring program is 
in place.

Take Reduction Plans

    Subject to available funding, MMPA section 118 requires the 
development and implementation of a Take Reduction Plan (TRP) in cases 
where a strategic stock interacts with a Category I or II fishery. The 
stocks considered for this permit are designated as strategic stocks 
under the MMPA because they are listed as threatened or endangered 
under the ESA. In 1996, a take reduction team (TRT) was convened to 
develop a TRP to address the incidental taking of several strategic 
stocks in the CA thresher shark/swordfish drift gillnet fishery. A 
POCTRP was implemented, through regulations, in October, 1997 (62 FR 
51813) and has been in place ever since. These strategic stocks also 
interact with the WA/OR/CA sablefish pot/trap fishery and other 
Category II fisheries described above, and a potential TRP is in the 
development phase. The short- and long-term goals of a TRP are to 
reduce mortality and serious injury of marine mammals incidental to 
commercial fishing to levels below PBR and to a zero mortality rate 
goal (indicated by meeting the threshold for placement in the annual 
LOF Category III), respectively. MMPA section 118(b)(2) states that 
fisheries maintaining such mortality and serious injury levels are not 
required to further reduce their mortality and serious injury rates. 
However, 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. NMFS has 
insufficient funding available to simultaneously develop and implement 
TRPs for all stocks that interact with Category I or Category II 
fisheries. As provided in MMPA section 118(f)(6)(A) and (f)(7), NMFS 
used the most recent SARs and LOF as the basis to determine its 
priorities for establishing TRTs and developing TRPs. Through this 
process, NMFS evaluated the CA/OR/WA stocks of humpback, fin, and sperm 
whales, and identified them as lower priorities compared to other 
marine mammal stocks and fisheries for establishing TRTs, based on 
population trends of each stock and mortality and serious injury levels 
incidental to commercial fisheries. In addition, NMFS is currently 
collecting data to categorize fixed gear fisheries and assess their 
risk to large whales off the U.S. west coast. Accordingly, given these 
factors and NMFS' priorities, implementation of the developing TRP for 
the WA/OR/CA sablefish pot trap fishery and other similar Category II 
fisheries will be deferred under section 118 as other stocks/fisheries 
are a higher priority for any available funding for establishing new 
TRPs.
    As noted in the summary above, all of the requirements to issue a 
permit to the following Federally-authorized fisheries have been 
satisfied: The CA thresher shark/swordfish DGN fishery ([gteqt]14 inch 
mesh) and WA/OR/CA sablefish pot fishery. Accordingly, NMFS proposes to 
issue a permit to participants in these Category II fisheries for the 
taking of CA/OR/WA humpback whales, CA/OR/WA fin whales, and CA/OR/WA 
sperm whales incidental to the fisheries' operations. As noted under 
MMPA section 101(a)(5)(E)(ii), no permit is required for vessels in 
Category III fisheries. For incidental taking of marine mammals to be 
authorized in Category III fisheries, any injuries or mortality must be 
reported to NMFS. NMFS solicits public comments on the proposed permit 
and the preliminary determinations supporting the permit.

    Dated: May 3, 2013.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-10913 Filed 5-7-13; 8:45 am]
BILLING CODE 3510-22-P