Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Modification of Permit, 50626-50631 [2014-20161]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 164 (Monday, August 25, 2014)]
[Notices]
[Pages 50626-50631]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-20161]


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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; Modification 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 is proposing to issue an amended permit to authorize the 
incidental, but not intentional, take of two stocks of marine mammals 
listed as threatened or endangered under the Endangered Species Act 
(ESA), under section 101(a)(5)(E) of the Marine Mammal Protection Act 
(MMPA), by the California (CA) thresher shark/swordfish drift gillnet 
fishery (>=14 in mesh) and the Washington (WA)/Oregon (OR)/CA sablefish 
pot fishery. In accordance with the MMPA, NMFS must issue this permit 
provided that it can make the determinations that: The incidental take 
will have a negligible impact on the affected 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 drift gillnet fishery (>=14 
in mesh) and the WA/OR/CA sablefish pot fisheries are registered. NMFS 
has made a preliminary determination that incidental taking from 
commercial fishing will have a negligible impact on the endangered 
humpback whale (CA/OR/WA stock) and the endangered sperm whale (CA/OR/
WA stock). Recovery plans have been completed for humpback and sperm 
whales. NMFS solicits public comments on the draft negligible impact 
determination (NID) and on the proposal to issue a permit to vessels 
that operate in these fisheries for the taking of affected endangered 
stocks of marine mammals.

DATES: Comments must be received by September 24, 2014.

[[Page 50627]]


ADDRESSES: The draft amended Negligible Impact Determination and list 
of references contained in this notice are available in electronic form 
via the Internet at: https://www.westcoast.fisheries.noaa.gov/
protected_species/marine_mammals/marine_mammals.html.
    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 to: Chris Yates, Assistant Regional 
Administrator, Protected Resources Division, West Coast Region, 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 West Coast 
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 MMPA, 16 U.S.C. 1361 et seq., states 
that NMFS, as delegated by the Secretary of Commerce, shall for a 
period of up to 3 years allow the incidental taking of marine mammal 
species listed under the ESA, 16 U.S.C. 1531 et seq., by persons using 
vessels of the United States and those vessels which have valid fishing 
permits issued by the Secretary in accordance with section 204(b) of 
the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1824(b), while engaging in commercial fishing operations, if NMFS makes 
certain determinations. NMFS must determine, after notice and 
opportunity for public comment, that: (1) Incidental mortality and 
serious injury (M/SI) 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 proposes to issue an amended permit under MMPA section 
101(a)(5)(E) to vessels registered in the CA thresher shark/swordfish 
drift gillnet fishery (14 in mesh) to incidentally take 
individuals from two stocks of threatened or endangered marine mammals: 
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 WA/OR/CA sablefish pot fishery to incidentally take 
individuals from the CA/OR/WA stock of humpback whales. 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; 78 FR 54553, September 4, 2013) and is not repeated 
here. The data for considering these authorizations were reviewed 
coincident with the 2014 MMPA List of Fisheries (LOF; 79 FR 14418, 
March 14, 2014), final 2013 U.S. Pacific Marine Mammal Stock Assessment 
(SAR; Carretta et al. 2014), Carretta and Moore (2014), Moore and 
Barlow (in press), 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: https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals), the best scientific information and 
available data, and other relevant sources.
    The previous permit was issued on September 4, 2013 (78 FR 54553), 
valid for a period of up to 3 years and expiring on September 4, 2016, 
and covered the CA/OR/WA stocks of humpback, fin, and sperm whale. 
Since issuing that permit, there have been significant changes in the 
information and conditions used to make the negligible impact 
determination for the permit issued on September 4, 2013 (78 FR 54553). 
This proposed MMPA 101(a)(5)(E) permit amends the previously issued 
permit, updates the information on the known biological and ecological 
data on sperm and humpback whales, and updates information on human-
caused mortality and serious injury (HCM/SI), since the September 2013 
permit (78 FR 54553). This proposed 101(a)(5)(E) permit would not 
extend the expiration date and would remain effective until September 
4, 2016. The draft amended NID does not include the CA/OR/WA fin whale 
stock because there has been no observed take of a fin whale in the CA 
thresher shark/swordfish drift gillnet fishery (>=14 in mesh) for the 
past 15 years.
    Based on observer data and marine mammal reporting forms, the 
vessels operating in the Category I CA thresher shark/swordfish drift 
gillnet fishery (>=14 in mesh) and the Category II WA/OR/CA sablefish 
pot fishery are the Category I and II fisheries that operate in the 
ranges of affected stocks, namely the CA/OR/WA stocks of humpback whale 
and sperm whale, and are currently considered for authorization. A 
detailed description of these fisheries can be found below. The CA 
thresher shark/swordfish drift gillnet fishery (>=14 in mesh) is the 
only Category I fishery operating off the coasts of California, Oregon, 
and Washington. The WA/OR/CA sablefish pot fishery is the only 
Federally-managed Category II fishery; all other Category II fisheries 
that may interact with the marine mammal stocks observed off the coasts 
of California, Oregon, and Washington are state-managed and are not 
considered for authorization under this permit. NMFS calculated the 
total known, assumed, or extrapolated HCM/SI to make a draft NID for 
this proposed authorization and included all human sources, such as 
commercial fisheries (not just the HCM/SI attributed to the two 
fisheries considered for authorization) and ship strikes. 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 any 
mortality or injury 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 M/SI 
incidental to commercial fisheries will have a negligible impact on the 
affected species or stocks of marine mammals. NMFS satisfies this 
requirement through completion of a draft NID. NMFS clarifies that 
incidental M/SI from commercial fisheries includes M/SI from 
entanglement in fishing gear or

[[Page 50628]]

ingestion of 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 (available at https://www.westcoast 
.fisheries.noaa.gov/), and thus, contains a broader scope of analysis 
than is required by MMPA section 101(a)(5)(E).
    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. Thus, 
as it applies here, the definition of ``negligible impact'' 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 is outlined in detail in 
the current draft amended NID made available through this notice and 
was described 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; 78 FR 54553, September 4, 2013).

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 M/SI 
incidental to commercial fisheries will have a negligible impact on a 
listed marine mammal stock, Criterion 1 is whether total known, 
assumed, or extrapolated HCM/SI is less than 10 percent of the 
potential biological removal level (PBR). If total known, assumed, or 
extrapolated HCM/SI is less than 10 percent of PBR, the analysis would 
be concluded, and the impact would be determined to be negligible. If 
Criterion 1 is not satisfied, NMFS may use one of the other criteria as 
appropriate. The remaining criteria describe alternatives under certain 
conditions. Criterion 2 is satisfied if the total known, assumed, or 
extrapolated HCM/SI is greater than PBR, but fisheries-related M/SI is 
less than 10 percent of PBR. If Criterion 2 is satisfied, vessels 
operating in individual fisheries may be permitted if management 
measures are being taken to address non-fisheries-related mortality and 
serious injury. Criterion 3 is satisfied if total fisheries-related M/
SI is greater than 10 percent of PBR and less than PBR, and the 
population is stable or increasing. Fisheries may then 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 10 percent of PBR will continue to be used. 
Criterion 5 states that if total fisheries-related M/SI are greater 
than PBR, permits may not be issued for that species or stock.
    We considered two time frames for this analysis: 5 years (2009-
2013) and 13 years (2001-2013). The first time frame we considered for 
both stocks of whales was the most recent 5-year period (here, January 
1, 2009 through December 31, 2013) and is typically used for NID 
analyses. A 5-year time frame in many cases 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. However, NMFS' Guidelines for Assessing Marine Mammal 
Stocks (GAMMS) suggest that mortality estimates could be averaged over 
as many years as necessary to achieve a coefficient of variation of 
less than or equal to 0.3. For humpback whales, we used a 5-year period 
consistent with the general recommendations in NMFS GAMMS for our final 
determination.
    However, Carretta and Moore (2014) recommend pooling longer time 
series of data when bycatch is a rare event. For example, pooling 10 
years of fishery data resulted in bycatch estimates within 25 percent 
of the true bycatch rate over 50 percent of the time (i.e., estimates 
were within 25 percent of the true value more often than not). Key to 
this approach was that the fishery must have had sufficiently constant 
characteristics (e.g., effort, gear, locations) to support the 
inference of consistent results across years such as with the CA 
thresher shark/swordfish drift gillnet fishery. Rare bycatch events 
typically involve smaller populations paired with low observer coverage 
in a fishery. If true bycatch mortality is low, but near PBR, then 
estimation bias needs to be reduced to allow reliable evaluation of the 
bycatch estimate against a low removal threshold.
    Currently, the sperm whale is the only ESA-listed marine mammal 
species interacting with the thresher shark/swordfish drift gillnet 
fishery (>=14 in mesh) meeting the conditions described in Carretta and 
Moore (2014): The stock has a relatively small minimum population 
estimate (Nmin) and a member of the stock was recently 
recorded as having been incidentally killed or seriously injured in a 
rare event (in the CA thresher shark/swordfish drift gillnet fishery 
(>=14 in mesh)). The post-2000 time period best represents the current 
spatial state of the fishery and we therefore used the 13-year period 
post-2000 to calculate mean annual mortality estimate for this stock of 
sperm whales, based on recommendations contained in the GAMMS and 
Carretta and Moore (2014).
    Moore and Barlow (in press) used a Bayesian hierarchical trend 
model for the CA/OR/WA sperm whale stock to more efficiently 
incorporate all available survey information to calculate the 
population abundance estimate using a longer time series to improve the 
precision of abundance estimates. This new analysis by Moore and Barlow 
(in press) estimates the minimum abundance at 1,332 sperm whales, using 
the Bayesian hierarchical trend modeling of sighting data from 2001-
2012. The associated PBR for the CA/OR/WA stock of sperm whales is 2.7.

Negligible Impact Determinations

    As explained above, the proposed permit amendment relies on a NID 
that uses a new 13-year period for averaging sperm whale bycatch rates 
rather than the 5-year period generally recommended in the NMFS GAMMS. 
We used a 5-year period for humpback whales consistent with the general 
recommendations in NMFS GAMMS for our final determination (note that a 
13-year time period (2001-2013) also resulted in a finding of 
negligible impact for humpback whales). The PBR for the CA/OR/WA 
humpback whale stock is 11 animals.
    The draft amended NID made available through this notice provides a 
complete analysis of the criteria for determining whether commercial 
fisheries off California, Oregon, and Washington are having a 
negligible impact on the CA/OR/WA stocks of humpback whale and sperm 
whale. A summary of the analysis and subsequent determination follows.

Criterion 1 Analysis

    Criterion 1 would be satisfied if the total known, assumed, or 
extrapolated human-caused M/SI is less than 10 percent of PBR. The 5-
year (2009-2013) average annual HCM/SI to the CA/OR/WA stock of 
humpback whales from all human sources is 5.0 or 45.45 percent of the 
PBR. The 13-year (2001-2013) average annual HCM/SI to the CA/OR/WA 
stock of sperm whales from all human sources is 1.7 or 65.5 percent of 
the PBR. Criterion 1 was not satisfied because the total known, 
assumed, or extrapolated HCM/SI for these stocks is not less than 10 
percent of PBR for the respective time period considered. As a

[[Page 50629]]

result, the other criteria must be examined for the CA/OR/WA stocks of 
humpback and sperm whales.

Criterion 2 Analysis

    Criterion 2 is satisfied if total known, assumed, or extrapolated 
HCM/SI are greater than PBR and the total fisheries-related mortality 
is less than 10 percent of PBR. Criterion 2 was not satisfied for the 
CA/OR/WA stocks of humpback whales or sperm whales for each time frame 
considered, based on the calculations described under Criterion 1. As a 
result, the other criteria were examined.

Criterion 3 Analysis

    Unlike Criteria 1 and 2, which examine total know, assumed, or 
extrapolated HCM/SI relative to PBR, Criterion 3 compares total 
fisheries-related M/SI to PBR. Criterion 3 would be satisfied if the 
total commercial fisheries-related M/SI (including state and federal 
fisheries) is greater than 10 percent of and less than 100 percent of 
PBR for each stock for the respective time frame considered, and the 
populations of these stocks are considered to be stable or increasing. 
If the Criterion is met, vessels may be permitted subject to individual 
review and certainty of data.
    Criterion 3 was satisfied for the CA/OR/WA humpback whale stock as 
the fishery-related M/SI from all commercial fisheries for the CA/OR/WA 
humpback whale stock is estimated at 40 percent of PBR (5-year average 
from 2009-2013 and between 10 percent and 100 percent of PBR), the 
stock has experienced a positive growth rate (8 percent per year), and 
there have been few known or assumed M/SI due to the subject fisheries.
    Criterion 3 was satisfied for the CA/OR/WA sperm whale stock as the 
total fishery-related M/SI is greater than 10 percent of and less than 
100 percent of PBR, and the population is stable. The fishery-related 
M/SI from all commercial fisheries for the CA/OR/WA sperm whale stock 
is estimated at 57 percent of PBR for the 13-year period of 2001-2013. 
A total of two sperm whales have been observed by NMFS' Federal 
observers as either seriously injured or killed in the CA thresher 
shark/swordfish drift gillnet fishery during the 13-year period since 
2000. None have been observed interacting with the WA/OR/CA sablefish 
pot fishery. The observed sperm whale takes were extrapolated by the 
percent observer coverage for that year. In 2010, the observer coverage 
was 11.9 percent and thus, the two observed animals are extrapolated to 
a total of 16 animals. Over the 13-year period this results in a 
bycatch rate that is 57 percent of PBR.
    In addition, Moore and Barlow (in press) provided new analyses that 
suggest that the revised abundance estimates are higher and more stable 
across years than currently published values. Accordingly, Criterion 3 
is satisfied in determining that M/SI of the CA/OR/WA sperm whale stock 
incidental to commercial fishing would have a negligible impact on the 
stock because of individual review of data regarding the stock, 
including that the level of HCM is below the estimated PBR and the 
stock is stable.
    In conclusion, based on the criteria outlined in 1999 (64 FR 
28800), the final 2013 U.S. Pacific Marine Mammal Stock Assessment 
report (SAR; Carretta et al,. 2014), Carretta and Moore (2014), Moore 
and Barlow (in press), and the best available scientific information, 
available data and other sources, NMFS has determined that the M/SI 
incidental to the CA thresher shark/swordfish drift gillnet fishery and 
the WA/OR/CA sablefish pot fishery will have a negligible impact on the 
CA/OR/WA stock of humpback whales and the CA thresher shark/swordfish 
drift gillnet fishery will have a negligible impact on the CA/OR/WA 
stock of sperm whales. NMFS therefore issues the draft amended NID and 
proposes to modify the MMPA 101(a)(5)(E) permit issued on September 4, 
2013, for the remainder of the 3-year period, expiring September 4, 
2016. Specifically, NMFS proposes that vessels operating in these 
identified commercial fisheries within the range of the CA/OR/WA 
humpback and sperm whale stocks may be permitted subject to individual 
review of the fishery 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 I and II in the 2014 LOF (NMFS 2014), which are known to kill 
or seriously injure ESA-listed marine mammals incidental to commercial 
fishing operations. Detailed descriptions of those fisheries can be 
found in the NMFS (2012) Final Biological Opinion on the groundfish 
fishery management plan, dated December 7, 2012, for the fisheries 
addressed in that Biological Opinion; the NMFS (2013) Biological 
Opinion for the with the CA thresher shark/swordfish drift gillnet 
fishery (>=14 in Mesh); the SARs (Carretta et al. 2014); and the draft 
NID (https://www.westcoast.fisheries.noaa.gov/).
California Thresher Shark/Swordfish Drift Gillnet Fishery (>14 in Mesh)
    Participants in the CA thresher shark/swordfish drift gillnet 
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 participating 
in the CA thresher shark/swordfish drift gillnet fishery (>=14 in mesh) 
that have registered with the Marine Mammal Authorization Program are 
authorized to take marine mammals incidental to their fishing 
operations. Vessels holding this authorization must comply with the 
Pacific Offshore Cetacean Take Reduction Plan and implementing 
regulations. Any vessel that violates regulations will be subject to 
enforcement action. The estimated number of vessels in the fishery is 
based upon the number of vessels that indicated intent to participate 
in the fishery according to historical reference and may not be an 
accurate estimate of the number of vessels actively engaged in fishing 
in any given year. The CA thresher shark/swordfish drift gillnet 
fishery (>=14 in mesh) is a limited entry program, managed with gear, 
seasons, and area closures. The number of vessels participating in the 
CA thresher shark/swordfish drift gillnet fishery (>=14 in mesh) has 
decreased from 148 permits issued and 98 active vessels in 1998 to 72 
permits issued and 19 active vessels in 2013 (CDFW License and Revenue 
Branch, extracted June 13, 2014). Information on the number of active 
permit holders was obtained from the ``Status of the U.S. west coast 
fisheries for HMS through 2004; Stock Assessment and Fishery 
Evaluation'' report, available from the Pacific Fishery Management 
Council Web site (www.pcouncil.org).
    The CA thresher shark/swordfish drift gillnet fishery (>=14 in 
mesh) targets swordfish and thresher shark. It operates outside of 
state waters 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, while 
allowing fishing inside 75 nm from August 15 through January 31. 
Vessels in this fishery targeting swordfish tend to set on warm ocean 
water temperature breaks, which do not appear along the California 
coast until late summer. Because of these restrictions, vessels are not 
active during February, March, and April, and very little fishing 
effort

[[Page 50630]]

occurs during the months of May, June, and July.
    In 2001, a seasonal (15 August-15 November) area closure was 
implemented in the CA thresher shark/swordfish drift gillnet fishery 
(>=14 in mesh) north of Point Conception to protect leatherback 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 CA thresher shark/swordfish DGN fishery to 
protect loggerhead turtles during a forecast or occurring El Nino event 
during the months of June, July and/or August.
    The NMFS West Coast Region has operated an at-sea observer program 
in the CA thresher shark/swordfish drift gillnet fishery (>=14 in mesh) 
since July 1990 to the present, and the California Department of Fish 
and Wildlife operated a drift gillnet 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 drift 
gillnet fishery (>=14 in mesh) interactions with listed marine mammal 
species was drawn from observer program records for the calendar years 
1990-2013 (NMFS, 2014). NMFS typically targets 20 percent observer 
coverage of the annual sets by the CA thresher shark/swordfish drift 
gillnet fishery (>=14 in mesh) fleet, with close to 100 percent of net 
retrievals monitored on observed trips for, among other things, species 
identification and enumeration.
Washington/Oregon/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 (600 ft; 182.88 m) curve off the west coast 
of the United States. 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 
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 West Coast 
(NWFSC, 2010), and the current estimated number of participants is 309. 
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 41 
vessels using traps only and five using a combination of traps and 
longline to catch their quota of sablefish in 2014 (NWFSC, 2014).
    The open access fishery is available to fishermen year round. North 
of 36[deg] N. (California), the trip limit is 300 lb/day or 1 landing 
of 700 lb per week, not to exceed 2,100 lb over 2 months. South of 
36[deg] N, the limit goes up to 350 lb/day or one landing of 1,050 lb 
per week. NOAA's Northwest Fisheries Science Center estimates 204 
fishermen (number of permits, not reflective of number of active 
fishermen) participating in the open access sector in 2014 based on a 
query, conducted on June 17, 2014 of the NMFS groundfish Web site 
(https://www.webapps.nwfsc.noaa.gov/apex_ifq/f?p=112:23).
    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, \5/8\th 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 M/SI from the CA thresher 
shark/swordfish drift gillnet fishery (>=14 in mesh) and WA/OR/CA 
sablefish pot fishery will have a negligible impact on the CA/OR/WA 
stock of humpback whales and the CA/OR/WA stock of 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 drift gillnet 
fishery (>=14 inch mesh) (as part of the HMS 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 FMP 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 FMP (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, 2012) and the draft Biological 
Opinion for the CA thresher shark/swordfish drift gillnet fishery (>=14 
inch mesh) (NMFS, 2013), 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 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 drift gillnet fishery 
(>=14 inch mesh) and WA/OR/CA sablefish pot fisheries.

[[Page 50631]]

Recovery Plans

    Recovery Plans for humpback 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 drift 
gillnet 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 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 drift gillnet fishery (>=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 M/SI of listed species (e.g., from 2000-2012, coverage ranged from 
approximately 12 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, and was observed in 2012 at approximately 73 percent. 
Accordingly, as required by MMPA section 118, a monitoring program is 
in place for both fisheries.

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 
two stocks considered for this permit are designated as strategic 
stocks under the MMPA because they are listed as endangered under the 
ESA (MMPA section 3(19)(C)).
    In 1996, NMFS convened a take reduction team (TRT) to develop a TRP 
to address the incidental taking of several strategic marine mammal 
stocks, including CA/OR/WA stocks of sperm whales and humpback whales, 
in the CA thresher shark/swordfish drift gillnet fishery (>=14 in 
mesh). The Pacific Offshore Cetacean TRP was implemented through 
regulations in October, 1997 (62 FR 51813) and has been in place ever 
since. Although a TRP is in place for the gillnet fishery, there is not 
one in place for the pot fishery.
    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, defined by NMFS as 
10 percent of PBR, respectively. MMPA section 118(b)(2) states that 
fisheries maintaining such M/SI levels are not required to further 
reduce their M/SI 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 stock of 
humpback whales and the WA/OR/CA sablefish pot fishery and identified 
it as a lower priority compared to other marine mammal stocks and 
fisheries for establishing TRTs, based on population trends of the 
stock and M/SI levels incidental to that commercial fishery. In 
addition, NMFS continues to collect 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 (>=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 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 mortality or serious injury must be reported to NMFS.

Solicitation of Public Comments

    NMFS solicits public comments on the proposed permit and the 
preliminary determinations supporting the permit. Specifically, we seek 
comments on:
     The use of the revised abundance estimates in Moore and 
Barlow (in press); and
     The use of a 13-year time period for estimating expected 
incidental mortality of sperm whales in the gillnet fishery.

    Dated: August 20, 2014.
Perry F. Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2014-20161 Filed 8-22-14; 8:45 am]
BILLING CODE 3510-22-P