Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit, 54553-54559 [2013-21485]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 171 (Wednesday, September 4, 2013)]
[Notices]
[Pages 54553-54559]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21485]



Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / 
Notices

[[Page 54553]]


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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.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), 
NMFS hereby issues a permit for a period of three years to authorize 
the incidental, but not intentional, taking of individuals 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 
incidental, but not intentional, taking of individuals from one stock 
by the Washington/Oregon/California (WA/OR/CA) sablefish pot fishery.

DATES: This permit is effective for a three-year period beginning 
September 4, 2013.

ADDRESSES: Reference material, including the negligible impact 
determination, for this permit is available on the Internet at the 
following address: 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. Information on the 
Pacific Offshore Cetacean Take Reduction Plan is available the Internet 
at the following address: https://www.nmfs.noaa.gov/pr/interactions/trt/poctrp.htm.
    Copies of the reference materials may also be obtained from the 
Protected Resources Division, 501 W Ocean Blvd., Suite 4200, Long 
Beach, CA 90802.

FOR FURTHER INFORMATION CONTACT: Monica DeAngelis, NMFS Southwest 
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 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.
    On May 8, 2013 (78 FR 26751), NMFS proposed to issue a permit under 
MMPA section 101(a)(5)(E) to vessels registered in the CA thresher 
shark/swordfish DGN fishery (>=14 inch mesh) to incidentally take 
individuals from 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); and to vessels 
registered in the and the WA/OR/CA sablefish pot fishery to 
incidentally take individuals from the CA/OR/WA stock of humpback 
whales. 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), Pacific Coast Groundfish FMP, 
recovery plans for these species (available on the Internet at the 
following address: https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals), the Emergency Rule (RIN 0648-BD57), and other 
relevant sources.
    Based on observer data and marine mammal reporting forms, the CA 
thresher shark/swordfish drift gillnet fishery (>=14 in mesh) and the 
WA/OR/CA sablefish pot fishery are the Category I or II fisheries that 
operate in the ranges of affected stocks, namely the CA/OR/WA stocks of 
fin, sperm whales, and humpback whales. A detailed description of these 
fisheries can be found in the negligible impact determination (see 
ADDRESSES). 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. 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.
    In accordance with the MMPA, NMFS has made a determination that 
incidental taking from commercial fishing will have a negligible impact 
on the fin whale, CA/OR/WA stock; humpback whale, CA/OR/WA stock; and 
sperm whale, CA/OR/WA stock. This authorization is based on a 
determination that this incidental take will have a negligible impact 
on the affected marine mammal stocks, recovery plans have been 
developed for each species, a monitoring program is established, 
vessels in the fisheries are registered, and that the necessary take 
reduction plan (TRP) is in place for the humpback and sperm whale 
stocks. A TRP is not required for the CA/OR/WA stock of fin whales 
because mortality and serious injury of this stock incidental to the CA 
thresher shark/swordfish DGN fishery and the WA/OR/CA sablefish pot 
fishery is at insignificant levels approaching a zero mortality and 
serious injury rate. NMFS also issued emergency regulations to reduce 
risk of sperm whale takes by the West Coast swordfish drift gillnet 
fishery (RIN 0648-BD57) below the stock's Potential Biological Removal 
(PBR) level of 1.5 animals; NMFS developed the measures in the 
emergency rule based on recommendations from the Pacific Offshore 
Cetacean Take Reduction Team. Revisions to the draft negligible impact 
determination were based on issuance of the emergency rule and on 
public comment received on the draft negligible impact determination 
(78 FR 26751, May 8, 2013).

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

[[Page 54554]]

negligible impact determination (see ADDRESSES). NMFS calculated the 
total human-related serious injury and mortality to make a negligible 
impact determination for this authorization and included all human 
sources, such as commercial fisheries and ship strikes. See the 
negligible impact determination for more detailed information.
    The average annual serious injury and mortality, from all sources, 
is below PBR for the CA/OR/WA fin and humpback whale stocks, but is 
above PBR for the CA/OR/WA sperm whale stock. At this time, no other 
fishery, with the exception of the CA thresher shark/swordfish DGN 
fishery (>=14 inch mesh), has documented takes of sperm whales. As a 
result, NMFS convened the Pacific Offshore Cetacean Take Reduction Team 
(Team) on July 31 and August 7, 2013 and charged the Team with 
developing recommendations to reduce sperm whale serious injury and 
mortality in the CA thresher shark/swordfish DGN fishery (>=14 inch 
mesh). NMFS considered the Team's recommendations and developed an 
emergency rule (RIN 0648-BD57) to modify the CA thresher shark/
swordfish DGN fishery (>=14 inch mesh) to reduce the risk of mortality 
and serious injury of sperm whales incidental to the fishery. In doing 
so, NMFS determined that the negligible impact determination conditions 
of the MMPA section 101(a)(5)(E) could be met, thereby allowing NMFS to 
provide incidental take authorization under the ESA and MMPA for the 
2013-2014 fishing season.
    The emergency rule, effective through January 31, 2014, includes 
several provisions to reduce risk to sperm whales and monitor the 
fishery. Specifically, the emergency rule provides for immediate 
termination of the CA thresher shark/swordfish DGN fishery (>=14 inch 
mesh) if one sperm whale is observed killed or seriously injured in DGN 
gear off California and establishes a 100-percent observer coverage 
zone that is closed to DGN fishing during the August 15, 2013 to 
January 31, 2014 fishing season unless the fishing vessel is carrying a 
NMFS-trained observer. The zone covers nearly all areas in the U.S. 
exclusive economic zone (EEZ) deeper than the 1,100 fathoms (fm) (2,012 
meters (m)) depth contour. Owners/operators of vessels intending to 
fish with DGN gear are required to install, activate, carry and operate 
a vessel monitoring system prior to embarking on a DGN fishing trip.
    NMFS intends to reconvene the Team to consider long-term measures 
for reducing sperm whale mortality and serious injury in the CA 
thresher shark/swordfish DGN fishery (>=14 inch mesh) in subsequent 
fishing seasons. It is expected that any future changes to the CA 
thresher shark/swordfish DGN fishery (>=14 inch mesh) that may occur as 
a result of modifying the Pacific Offshore Cetacean Take Reduction Plan 
would not change the negligible impact analysis. However, if a 
mortality or serious injury of a sperm whale (CA/OR/WA stock) occurs in 
any fishery, that would be included in the total fishery-related 
serious injury or mortality considered in a future negligible impact 
determination. The underlying data indicate that there is a very low 
likelihood that another fishery may take a sperm whale, but in the 
unlikely event that a mortality or serious injury occurs during the 
three-year time frame for this authorization, the negligible impact 
determination would be re-evaluated pursuant to section 
101(a)(5)(E)(iii), (iv), and (v) of the MMPA (16 U.S.C. 
1371(a)(5)(E)(iii), (iv), and (v)). Thus, based on this information, 
the emergency rule (RIN 0648-BD57), 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.
    In conclusion, based on the negligible impact criteria outlined in 
1999 (64 FR 28800), the 2011 Pacific SARs (Carretta et al. 2012), the 
best scientific information and data available, and the measures 
required in the emergency rule (RIN 0648-BD57) to modify the CA 
thresher shark/swordfish DGN fishery (>=14 inch mesh), 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 will have a negligible impact on the CA/OR/WA stocks of sperm 
whales, humpback whales, and fin whales, and mortality and serious 
injury incidental to the WA/OR/CA sablefish pot fishery will have a 
negligible impact on the CA/OR/WA stock of humpback whales.
    The available serious injury and mortality data for the CA/OR/WA 
stock of fin whales meet the factors for negligible impact 
determination under Criterion 2 of the 1999 criteria, including because 
the annual average fisheries-related mortality is less than 0.1 PBR. 
The available data for the CA/OR/WA stock of humpback whales meet the 
factors for negligible impact determination under Criterion 3 of the 
1999 criteria, including because the expected fisheries-related 
mortality is greater than 0.1 PBR and less than PBR and the population 
is increasing. Total fishery-related serious injury and mortality for 
the CA/OR/WA stock of sperm whales is greater than 0.1 PBR and is 
anticipated to be less than PBR following implementation of the 
emergency rule to modify the CA thresher shark/swordfish DGN fishery 
(>=14 inch mesh) fishery (RIN 0648-BD57), and the population is stable; 
thus, the conditions of Criterion 3 of the 1999 negligible impact 
criteria are met for this stock and would be re-evaluated pursuant to 
section 101(a)(5)(E)(iii), (iv), and (v) of the MMPA. Therefore, the 
identified commercial fisheries within the range of the CA/OR/WA stocks 
of fin, humpback, and sperm whales may be permitted subject to their 
individual review and the certainty of relevant data, and provided that 
the other provisions of MMPA section 101(a)(5)(E) are met.

Determinations for the Permit

    Based on the final negligible impact determination, NMFS concludes 
that the incidental mortality and serious injury from the CA thresher 
shark/swordfish DGN fishery (>=14 inch mesh) will have a negligible 
impact on the CA/OR/WA stock of humpback whales, fin whales, and sperm 
whales and the WA/OR/CA sablefish pot fishery will have a negligible 
impact on the CA/OR/WA stock of humpback 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 FMP for U.S. West Coast Fisheries for 
Highly Migratory Species) and the WA/OR/CA sablefish pot fishery (as 
part of the Pacific Coast groundfish FMP), 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 Final Biological Opinion (May 7, 2013) 
as amended (August 21, 2013), for the CA thresher shark/swordfish DGN 
fishery (>=14 inch mesh) (NMFS 2012b), pursuant to the ESA.

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Because this 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 human environment or effects on threatened or endangered species 
beyond those analyzed in these documents. NMFS 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 in the sections below.

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 for all three stocks.

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 or 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 (>=14 inch mesh) has 
been observed by NMFS-certified observers since the early 1990s. Levels 
of observer coverage vary over time 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 Pacific Coast Groundfish FMP and MSA objectives, the WA/OR/
CA sablefish pot fishery is observed at about 1-6% per year. 
Accordingly, as required by MMPA section 118, a monitoring program is 
in place for both fisheries.
    Additionally, the emergency rule (RIN 0648-BD57) establishes a 100-
percent observer coverage zone that is closed to DGN fishing during the 
August 15, 2013 to January 31, 2014 fishing season unless the fishing 
vessel is carrying a NMFS-trained observer. The zone covers nearly all 
areas in the U.S. EEZ deeper than the 1,100 fm (2,012 meters m) depth 
contour. NMFS will reconvene the Take Reduction Team to review this 
requirement, among other issues, and will take appropriate action for 
subsequent fishing seasons.

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 (MMPA section 3(19)(C)).
    In 1996, the Pacific Offshore Cetacean Take Reduction Team 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 TRP was implemented, through regulations, in October, 1997 
(62 FR 51813) and has been in place ever since. The 2011 U.S. Pacific 
Marine Mammal Stock Assessment Reports (Carretta et al. 2012) and the 
MMPA List of Fisheries (https://www.nmfs.noaa.gov/pr/interactions/lof/) 
indicate no fin whales have interacted with either the CA thresher 
shark/swordfish DGN fishery (>=14 inch mesh) or the WA/OR/CA sablefish 
pot fishery in the last five years, the time period used to determine 
PBR levels for all marine mammal stocks. As such, a take reduction plan 
is not required for the CA/OR/WA stock of fin whales because mortality 
and serious injury of this stock incidental to commercial fishing 
operations is at insignificant levels approaching a zero mortality and 
serious injury rate. 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 insignificant levels 
approaching a zero mortality and serious injury rate (i.e., 10% of 
PBR), 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.
    The CA/OR/WA humpback whale stock, also a strategic stock, 
interacts with the WA/OR/CA sablefish pot/trap fishery and other 
Category II fisheries. However, the obligations to develop and 
implement a TRP are subject to the availability of funding. 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 
used the most recent SARs and LOF as the basis to determine its 
priorities for establishing Take Reduction Teams (TRTs) and developing 
TRPs. Through this process, NMFS evaluated the available data on 
abundance and fishery-related mortality for the CA/OR/WA stock of 
humpback whales, and identified them as a lower priority compared to 
other marine mammal stocks and fisheries for establishing TRTs, based 
on increasing abundance as well as mortality and serious injury levels 
below the stock's PBR. The CA/OR/WA stock of humpback whales has been 
designated as strategic because it is ESA-listed (MMPA section 
3(19)(C)) and not because direct human-caused mortality exceeds PBR 
(MMPA section 3(19)(A)). In addition, NMFS is currently collecting data 
to characterize fixed gear fisheries and assess their risk to large 
whales off the U.S. west coast. Given these factors and NMFS' 
priorities, developing a 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 developing new TRPs.

Current Permit

    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 (>=14 inch mesh) 
and WA/OR/CA sablefish pot fishery. Accordingly, NMFS hereby issues a 
permit to participants in the Category I CA thresher shark/swordfish 
DGN fishery (>=14 inch mesh) for the taking of CA/OR/WA humpback 
whales, CA/OR/WA fin whales, and CA/OR/WA sperm whales, and 
participants in the Category II WA/OR/CA sablefish pot fishery for the 
taking of CA/OR/WA stock of humpback 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

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NMFS. If NMFS determines at a later date that incidental mortality and 
serious injury from commercial fishing is having more than a negligible 
impact on the CA/OR/WA stocks of fin, humpback, or sperm whales, NMFS 
may use its emergency authority under MMPA section 118 to protect the 
stock and may modify the permit issued herein.
    MMPA section 101(a)(5)(E) requires NMFS to publish in the Federal 
Register a list of fisheries that have been authorized to take 
threatened or endangered marine mammals. A list of such fisheries was 
most recently published, as required, on February 27, 2012 (77 FR 
11493), which authorized the taking of threatened or endangered marine 
mammals incidental to one Category II fishery along the west coast of 
the United States. With issuance of the current permit, NMFS adds the 
CA thresher shark/swordfish DGN fishery (>=14 inch mesh) fishery and 
WA/OR/CA sablefish pot fishery to this list (Table 1).

  Table 1--List of Fisheries Authorized To Take Specific Threatened and
  Endangered Marine Mammals Incidental to Commercial Fishing Operations
------------------------------------------------------------------------
            Fishery                  Category       Marine mammal stock
------------------------------------------------------------------------
HI deep-set (tuna target)        I..............  Humpback whale, CNP
 longline/set line.                                stock.
CA thresher shark/swordfish      I..............  Fin whale, CA/OR/WA
 drift gillnet fishery (>=14 in                    stock.
 mesh).
                                                  Humpback whale, CA/OR/
                                                   WA stock.
                                                  Sperm whale, CA/OR/WA
                                                   stock.
Hi shallow-set (swordfish        II.............  Humpback whale, CNP
 target) longline/set line.                        stock.
AK Bering Sea/Aleutian Islands   II.............  Steller sea lion,
 flatfish trawl.                                   Western stock.
AK Bering Sea/Aleutian Island    II.............  Fin whale, NEP stock.
 pollock trawl.
                                                  Steller sea lion,
                                                   Western stock.
AK Bering Sea sablefish pot....  II.............  Humpback whale, WNP
                                                   stock.
                                                  Humpback whale, CNP
                                                   stock.
AK Bering Sea/Aleutian Islands   II.............  Steller sea lion,
 Pacific cod longline fisheries.                   Western stock.
WA/OR/CA sablefish pot fishery.  II.............  Humpback whale, CA/OR/
                                                   WA stock.
AK miscellaneous finfish set     III............  Steller sea lion,
 gillnet.                                          Western stock.
AK Gulf of Alaska sablefish      III............  Sperm whale, NP stock.
 longline.
                                                  Steller sea lion,
                                                   Eastern stock.
AK halibut longline/set line     III............  Steller sea lion,
 (State and Federal waters).                       Western stock.
AK Bering Sea/Aleutian Islands   III............  Steller sea lion,
 Atka mackerel trawl.                              Western stock.
AK Bering Sea/Aleutian Islands   III............  Steller sea lion,
 Pacific cod trawl.                                Western stock.
AK Gulf of Alaska Pacific cod    III............  Steller sea lion,
 trawl.                                            Western stock.
AK Gulf of Alaska pollock trawl  III............  Fin whale, NEP stock.
                                                  Steller sea lion,
                                                   Western stock.
CA set gill net................  III............  None documented.
CA/OR/WA salmon troll..........  III............  None documented.
WA/OR/CA groundfish, bottomfish  III............  None documented.
 longline/set line.
WA/OR North Pacific halibut      III............  None documented.
 longline/set line.
CA halibut bottom trawl........  III............  None documented.
WA/OR/CA shrimp trawl..........  III............  None documented.
------------------------------------------------------------------------

Comments and Responses

    On May 8, 2013 (78 FR 26751), NMFS proposed to issue 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 to incidentally take individual animals from the CA/OR/WA 
stocks of fin, humpback, and sperm whales. NMFS solicited comments on 
the proposal to issue a permit and the negligible impact determination 
and received letters containing comments from four organizations, the 
Marine Mammal Commission (Commission) and a joint letter from the 
Center for Biological Diversity, Turtle Island Restoration Network, and 
Oceana. Each letter contained multiple comments. NMFS also received one 
petition letter signed by 13,425 people, and one individual sent the 
exact same petition letter separately.
    Comment 1: The Commission briefly summarized NMFS' findings for the 
proposed permit and recommended that NMFS comply with the MMPA section 
101(a)(5)(E) by issuing the permit to the CA thresher shark/swordfish 
drift gillnet fishery (>=14 in mesh) for the CA/OR/WA fin and humpback 
whale stocks and the WA/OR/CA sablefish pot fishery for the CA/OR/WA 
humpback whale stock. The Commission also recommended that NMFS comply 
with MMPA section 101(a)(5)(E) by issuing the permit to the WA/OR/CA 
sablefish pot fishery for the CA/OR/WA fin and sperm whale stocks.
    Response: NMFS agrees and is issuing the permit as required by the 
MMPA. NMFS clarifies that the permit will be issued for the WA/OR/CA 
sablefish pot fishery for the CA/OR/WA humpback whale stock, but not 
for the CA/OR/WA fin and sperm whale stocks as these two stocks do not 
interact with this fishery.
    Comment 2: The Commission recommended that NMFS, before authorizing 
the take of sperm whales in the CA thresher shark/swordfish drift 
gillnet fishery (>=14 in mesh), account for negative bias in the 
serious injury and mortality estimates and demonstrate that the 
available survey data and the degree of uncertainty in the data on 
population size and trends, reproductive rate and serious injury and 
mortality estimates provide statistical evidence that the stock is 
stable and not declining. Further, the Commission recommended that 
``total fisheries-related serious injuries and mortalities'' should 
include extrapolated values from the observed number of serious injury 
or mortality with the corresponding observer coverage rate, not just 
the observed number of serious injuries and mortalities. The Center for 
Biological Diversity, Turtle Island Restoration Network, and Oceana 
provided a similar comment and also indicated that takes of sperm 
whales exceeded the PBR of 1.5 animals.
    Response: With respect to bias and uncertainty and the PBR 
equation, NMFS notes that PBR is based upon

[[Page 54557]]

conservative estimates of abundance and Rmax and includes a recovery 
factor (0.1 for sperm whales). The PBR approach was thoroughly tested 
in simulation trials and found to be robust to over-estimates of Rmax, 
underestimates of mortality, and low precision of abundance and 
mortality estimates. Further, NMFS has established that the CA/OR/WA 
sperm whale stock is not decreasing; therefore, it is either stable or 
increasing (Carretta et al. 2012).
    NMFS agrees that further analysis of the CA/OR/WA sperm whale stock 
was warranted. As recommended by the Commission, the negligible impact 
determination analysis now includes the estimated mortality and serious 
injury as an extrapolated value based on the takes observed by a NMFS-
certified fishery observer and the observer coverage for that year.
    Comment 3: The Commission noted that while NMFS is developing a 
Take Reduction Plan for the sablefish pot fishery, the details of that 
process have yet to be published and no Take Reduction Team has been 
formed.
    Response: As noted earlier in this notice, MMPA section 118(f)(3) 
(16 U.S.C. 1387(f)(3)) contains specific priorities for developing TRPs 
if insufficient funding is available to develop and implement TRPs for 
all applicable stocks and fisheries. 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 such, NMFS prioritizes which stocks and fisheries to 
address under a TRP. MMPA section 118(f) provides that if there is 
insufficient funding available to develop and implement a take 
reduction plan for stocks that interact with Category I and II 
fisheries, the Secretary shall give highest priority to the development 
of TRP's for species or stocks whose level of incidental mortality and 
serious injury exceeds PBR, that that have small population size, and 
those that declining most rapidly. Further, NMFS notes that the CA/OR/
WA stock of humpback whales has been designated as strategic because it 
is ESA-listed (MMPA section 3(19)(C)) and not because direct human-
caused mortality exceeds PBR (MMPA section 3(19)(A)). At this time, 
developing a 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 developing new TRPs.
    In the meantime, NMFS has identified conservation recommendations 
for humpback whales in the biological opinion, dated December 7, 2012, 
on the Continuing Operation of the Pacific Coast Groundfish Fishery, 
that provides general guidance for unique, visual marking of sablefish 
pot/trap gear as identifiable to a specific fishery, as well as 
guidance to report, track, and retrieve pot/trap gear that becomes lost 
and minimize the loss of pot/trap gear. Consistent with the terms and 
conditions of that biological opinion, the Pacific Fishery Management 
Council recently established the Pacific Coast Groundfish and 
Endangered Species Work Group, to serve as a multi-party advisory body 
to the Council for the purpose of supporting ESA compliance for species 
including humpback whales. One of the work group's duties will be to 
propose, for Council consideration, conservation and management 
measures to minimize bycatch of the aforementioned species. NMFS 
anticipates that this group will draw from the conservation 
recommendations developed in the biological opinion when considering 
measures. Appointments to the workgroup will be made at the September 
2013 Council meeting, and a first meeting will follow this coming fall/
winter. Lastly, over the last four years, NMFS has been collecting data 
and conducting a risk assessment of the impact of fixed gear fisheries, 
including the sablefish pot fishery, on large whales off the United 
States. This assessment will help NMFS to determine whether additional 
data collection would be necessary to convene a TRT.
    Comment 4: The Commission questioned whether the observer coverage 
in the CA thresher shark/swordfish drift gillnet fishery (>=14 in mesh) 
is sufficient to meet the MMPA's mandate under section 118(d)(1)(A) 
that such programs be adequate to ``obtain statistically reliable 
estimates of incidental mortality and serious injury'' or describe 
plans for attaining the recommended 30 percent coverage level. 
Similarly, Center for Biological Diversity, Turtle Island Restoration 
Network, and Oceana opposed the issuance of the permit because the 
existing monitoring programs for the fisheries considered in the 
proposed authorization do not meet the MMPA's requirement to provide 
statistically reliable estimates of serious injury and mortality.
    Response: The CA thresher shark/swordfish DGN fishery (>=14 inch 
mesh) has been observed by NMFS-certified observers since the early 
1990s. Observer coverage levels in the fishery vary over time 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). Additionally, the recent emergency rule (RIN 0648-BD57) 
requires increased observer coverage in the fishery. Specifically, the 
rule establishes a 100-percent observer coverage zone that is closed to 
DGN fishing during the August 15, 2013 to January 31, 2014 fishing 
season unless the fishing vessel is carrying a NMFS-trained observer. 
The zone covers nearly all areas in the U.S. EEZ deeper than the 1,100 
fm (2,012 m) depth contour. Therefore, 100% observer coverage is 
required in areas deeper than the 1,100 fm (2,012 m) depth contour, and 
NMFS hopes to attain at least 30% observer coverage in other areas 
where fishing will occur. NMFS expects to reconvene the Take Reduction 
Team to review this monitoring requirement, among other issues, and 
would take appropriate action for subsequent fishing seasons.
    Comment 5: The Commission noted that the sablefish pot fishery has 
been subject to much lower observer coverage and recommended that NMFS 
describe alternative approaches, such as gear marking, to obtain 
reliable estimates of serious injury and mortality rates in the 
sablefish pot fishery.
    Response: The observer coverage for the WA/OR/CA sablefish pot 
fishery is at 1-6% per year, and NMFS expects to maintain this level of 
coverage. Observer programs have not observed entangled humpback whales 
because the interactions are occurring when the fishing vessel is not 
present (the pot gear is left unattended). The probability of observing 
a take in this fishery is therefore extremely rare. Large whales can 
swim considerable distances after becoming entangled in such gear, so 
takes can go unobserved in these fisheries even if observers are on 
board. NMFS has records of entangled whales, including humpback whales, 
from opportunistic sightings reported to stranding networks, not from 
observer programs.
    NMFS acknowledges the Commission's recommendation to describe 
alternative approaches to obtain reliable estimates of serious injury 
and mortality rates in the sablefish pot fishery; and, as discussed in 
Comment 3, NMFS has identified conservation recommendations for 
humpback whales in the biological opinion, dated December 7, 2012, on 
the Continuing Operation of the Pacific Coast Groundfish Fishery, that 
provide general guidance for unique, visual marking of sablefish pot/
trap gear as identifiable to a specific fishery, as well as guidance to 
report, track, and retrieve pot/trap gear that becomes lost, and

[[Page 54558]]

guidance to minimize the loss of pot/trap gear.
    Comment 6: The Commission noted that the criteria for establishing 
a negligible impact determination under section 101(a)(5)(E) of the 
MMPA are not well defined. The Commission recommended that NMFS, in 
consultation with the Commission, review the negligible impact 
determination criteria and their application, and take the necessary 
steps to establish improved criteria that are clear, logical, 
internally consistent, and cover all probable scenarios. In addition, 
the Commission stated that NMFS should examine its other authorities 
that play a part in making determinations under section 118 of the MMPA 
to identify possible modifications to fishing gear and practices that 
would reduce the likelihood of serious injury or mortality to the 
lowest degree practicable and further efforts to satisfy the zero 
mortality rate goal of the MMPA.
    Response: NMFS agrees that the criteria for establishing a 
negligible impact determination under section 101(a)(5)(E) of the MMPA 
should be reviewed and appreciates the Commission's willingness to work 
with NMFS and to review and, if necessary, modify the criteria. NMFS 
will also continue to work with TRTs to develop take reduction measures 
that achieve the MMPA's long-term goal for TRPs.
    Comment 7: The Center for Biological Diversity, Turtle Island 
Restoration Network, and Oceana opposed the issuance of the permit 
because the proposed authorization included no measures to (1) reduce 
entanglements and loss of fishing gear; (2) collect better data to 
quantify loss of gear from fisheries; and (3) encourage the removal of 
derelict fishing gear and proper disposal.
    Response: Authorization under section 101(a)(5)(E) of the MMPA 
requires a determination that (a) the incidental mortality and serious 
injury incidental to commercial fisheries will have a negligible impact 
on the stock or species; (b) a recovery plan has been or is being 
developed; and (c) where required, a monitoring program is established, 
vessels are registered accordingly, and a Take Reduction Plan has been 
or is being developed. These authorizations themselves do not include 
measures that will reduce entanglements, collect better data, or 
encourage the removal of derelict fishing gear. However, NMFS 
implements other programs to address marine mammal entanglement in 
fishing gear, such as the Pacific Offshore Cetacean Take Reduction Plan 
and ESA section 7 consultations on FMPs (see Response to Comment 3).
    Comment 8: The Center for Biological Diversity, Turtle Island 
Restoration Network, and Oceana stated that NMFS neglected to include 
in its tally of sperm whale serious injury events the observed 
collision in 2007 between a sperm whale and a limited entry fixed gear 
vessel, fishing with longline gear and participating in the sablefish 
fishery. Commenters indicated that the serious injury should be 
attributed to this fishery, which includes sablefish and longlines.
    Response: NMFS disagrees. The tally for total human-caused serious 
injury and mortality did include the mortality of this sperm whale, but 
the event was not considered a fisheries-related serious injury or 
mortality as the cause of death was a ship strike and not related to 
interactions with fishing gear. This interaction was applied to non-
fisheries mortality and included in the total human-caused mortality 
figure.
    Comment 9: The Center for Biological Diversity, Turtle Island 
Restoration Network, and Oceana stated that NMFS must consider 
additional measures to mitigate the take of endangered marine mammals 
in process of its determination and alternatives should include 
examination of whether a closed area may protect endangered marine 
mammals based on the density data NMFS has collected.
    Response: NMFS agrees and has modified the CA thresher shark/
swordfish drift gillnet fishery (=14 in mesh) in a separate 
emergency rule (RIN 0648-BD57) to reduce risk to sperm whales.
    Comment 10: The Center for Biological Diversity, Turtle Island 
Restoration Network, and Oceana stated that NMFS did not consider all 
Category I and II fisheries that seriously injure and kill the fin, 
humpback, and sperm whales in California, Oregon, and Washington and 
that it is improper to issue a permit for some commercial fisheries 
while stating that NMFS will not consider others operating in violation 
of the MMPA by taking the same stocks.
    Response: NMFS considered all fishery-related serious injury and 
mortality to the CA/OR/WA stocks of fin, humpback, and sperm whales in 
making its negligible impact determination. All recorded takes from all 
fisheries that interact with the CA/OR/WA stocks of fin, humpback, and 
sperm whales are accounted for in the analysis. In this notice, NMFS is 
authorizing incidental take by commercial fishers in the CA thresher 
shark/swordfish drift gillnet fishery (=14 in mesh) and the 
WA/OR/CA sablefish pot fishery to take specific marine mammal stocks 
(see Table 1). The remaining Category II fisheries that interact with 
the marine mammal stocks observed off the coasts of Washington, Oregon, 
and California are state-managed and not considered under this permit 
for authorization of incidental take by fishers in those state-managed 
fisheries. Serious injuries and mortalities attributed to the state-
managed fisheries were, however, included in the tallies of take in the 
negligible impact determination analysis.
    Comment 11: The Center for Biological Diversity, Turtle Island 
Restoration Network, and Oceana stated that the proposed authorization 
must be self-effectuating with respect to the expiration date of the 
permit. Commenters further explained that based on NMFS' history of 
issuing authorizations, the proposed authorization may in practice 
allow take of endangered whales for six to seven years and that the 
MMPA section 101(a)(5)(E) authorization allow incidental take ``during 
any period of up to 3 consecutive years.'' Therefore, issuing the 
permit without language that requires the fishery to shut down or 
otherwise avoid incidental take of marine mammals at the expiration of 
the permit is outside of NMFS' statutory authority.
    Response: NMFS acknowledges that there have been delays between the 
expiration of one 101(a)(5)(E) authorization and the issuance of 
another. Authorization to incidentally take endangered marine mammals 
under MMPA 101(a)(5)(E) is for a period of up to three consecutive 
years.
    Comment 12: The Center for Biological Diversity, Turtle Island 
Restoration Network, and Oceana stated that the permit could not be 
issued because no take reduction plan has or is being developed for the 
fin whale because the 1997 Pacific Offshore Take Reduction Plan did not 
anticipate the incidental bycatch of fin whales in the California drift 
gillnet fishery.
    Response: The MMPA List of Fisheries (https://www.nmfs.noaa.gov/pr/interactions/lof/) indicates that fin whales do not interact with the 
CA thresher shark/swordfish DGN fishery or the WA/OR/CA sablefish pot 
fishery; and, as indicated in the 2011 U.S. Pacific Marine Mammal Stock 
Assessments (Carretta et al. 2012), no fin whales have interacted with 
either of these fisheries in the last five years, the time period used 
to determine PBR. Take Reduction Plans are not required for the CA/OR/
WA stock of fin whales

[[Page 54559]]

because mortality and serious injury of this stock incidental to 
commercial fishing operations is at insignificant levels approaching a 
zero mortality and serious injury rate.
    Comment 13: The Center for Biological Diversity, Turtle Island 
Restoration Network, and Oceana state that the proposed authorization 
will violate section 7 of the ESA without completion of formal 
consultation regarding NMFS' issuance of a MMPA section 101(a)(5)(E) 
permit authorizing take of endangered fin, humpback, and sperm whales.
    Response: NMFS has complied with the ESA for the issuance of the 
MMPA permit through the issuance of a biological opinion on December 7, 
2012 for the WA/OR/CA sablefish pot fishery, a biological opinion on 
May 2, 2013 for the CA thresher shark/swordfish drift gillnet fishery 
(>=14 in mesh), and updated memo on August 21, 2013 to account for the 
emergency rule (RIN 0648-BD57).
    Comment 14: The Commission and the Center for Biological Diversity, 
Turtle Island Restoration Network, and Oceana stated that NMFS needs to 
make the finding that the sperm whale stock is either stable or 
increasing and that NMFS cannot assume for the purposes of the 
negligible impact determination that the stock is stable or increasing, 
especially given that the most recent estimate from 2008 survey is the 
lowest to date.
    Response: As described in response to Comment 2, NMFS has 
established that the CA/OR/WA sperm whale stock is not decreasing; 
therefore, it is either stable or increasing. Although there remains 
some uncertainty related to the abundance of the population, the 
apparent trend for sperm whales in the Pacific Ocean is an increase, 
and this increase is occurring even with current levels of mortality 
and serious injury.
    Comment 15: The Center for Biological Diversity, Turtle Island 
Restoration Network, and Oceana requested that NMFS prescribe emergency 
regulations that reduce the incidental mortality and serious injury in 
the CA thresher shark/swordfish drift gillnet fishery (>=14 in mesh) as 
requested in a letter sent to NMFS on September 12, 2012; reconvene the 
Take Reduction Team for the purposes of modifying the existing Take 
Reduction Plan so as to reduce mortality and serious injury of all 
marine mammals in the fishery to insignificant levels approaching a 
zero mortality and serious injury rate (i.e., 10% of PBR); and issue a 
section 101(a)(5)(E) permit only if such modifications to the Take 
Reduction Plan are deemed likely to reduce take of endangered marine 
mammals to levels below 10% of PBR.
    Response: Modifications to the CA thresher shark/swordfish DGN 
fishery (>=14 inch mesh) were made in an emergency rule to reduce risk 
of sperm whale takes by the West Coast swordfish drift gillnet fishery 
(RIN 0648-BD57) in accordance with the MSA, the ESA, and the MMPA for 
the 2013/2014 fishing season. These measures emerged from Pacific 
Offshore Cetacean Take Reduction Team meetings, which NMFS convened on 
July 31 and August 7, 2013. The Team was charged with developing 
recommendations to reduce sperm whale mortality and serious injury in 
the CA thresher shark/swordfish DGN fishery (>=14 inch mesh). NMFS 
considered the Team's recommendations and developed an emergency rule 
to modify the fishery and reduce risk to sperm whales during the 2013-
14 fishing season. The emergency rule provides for immediate 
termination of the CA thresher shark/swordfish DGN fishery (>=14 inch 
mesh) if one sperm whale is observed killed or seriously injured in the 
fishery and establishes a 100-percent observer coverage zone that is 
closed to DGN fishing during the August 15, 2013 to January 31, 2014 
fishing season unless the fishing vessel is carrying a NMFS-trained 
observer. The zone covers nearly all areas in the U.S. EEZ deeper than 
the 1,100 fm (2,012 m) depth contour. Owners and operators of vessels 
intending to fish in the CA thresher shark/swordfish drift gillnet 
fishery (>=14 in mesh) will be required to install, activate, carry, 
and operate a vessel monitoring system. NMFS intends to convene the 
Take Reduction Team to consider long-term measures for reducing sperm 
whale mortality and serious injury in the CA thresher shark/swordfish 
DGN fishery (>=14 inch mesh) in subsequent fishing seasons.
    Comment 16: NMFS received one petition letter signed by 13,425 
people and one individual opposing the three-year authorization urging 
the closure of the CA thresher shark/swordfish DGN fishery (>=14 inch 
mesh) fishery and the denial of the permit, based upon underfunded 
monitoring of the fishery and marine mammal bycatch associated with the 
fishery (specifically sperm whales).
    Response: See responses above under Comments 2, 4, 7, 9, and 16.

    Dated: August 28, 2013.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-21485 Filed 9-3-13; 8:45 am]
BILLING CODE 3510-22-P