Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit, 40870-40876 [2016-14866]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 121 (Thursday, June 23, 2016)]
[Notices]
[Pages 40870-40876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14866]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD283


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), 
we, NMFS, hereby issue a permit for a period of three years to 
authorize the incidental, but not intentional, taking of individuals 
from three marine mammal stocks listed under the Endangered Species Act 
(ESA) by the Bering Sea and Aleutian Islands (BSAI) pollock trawl and 
BSAI flatfish trawl fisheries: The Western North Pacific (WNP) stock of 
humpback whales (Megaptera novaeangliae); Central North Pacific (CNP) 
stock of humpback whales; and Western U.S. stock of Steller sea lions 
(Eumetopias jubatus).

DATES: This permit is effective for a three-year period beginning June 
23, 2016.

ADDRESSES: Reference materials for this permit, including the 
negligible impact determination (NID), are available on the Internet at 
https://www.regulations.gov, identified by Docket Number NOAA-NMFS-2014-
0057. Recovery plans for humpback whales and Steller sea lions are 
available on the Internet at https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals. Copies of the reference materials are also available 
upon request from the NMFS Office of Protected Resources, 1315 East-
West Highway, 13th Floor, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Jon Kurland, NMFS Alaska Region, 907-
586-7638, Jon.Kurland@noaa.gov; or Shannon Bettridge, NMFS Office of 
Protected Resources, 301-427-8402, Shannon.Bettridge@noaa.gov.

SUPPLEMENTARY INFORMATION: 

Background

    Pursuant to section 101(a)(5)(E) of the MMPA, 16 U.S.C. 1361 et 
seq., NMFS shall for a period of up to three consecutive years, allow 
the incidental, but not the intentional, taking of marine mammal 
species listed under the ESA,

[[Page 40871]]

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 we make certain 
determinations. We 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 stocks; (2) a 
recovery plan has been developed or is being developed for the species 
or stocks under the ESA; and (3) where required under section 118 of 
the MMPA, a monitoring program has been established for the fisheries, 
vessels engaged in the fisheries are registered, and a take reduction 
plan (TRP) has been developed or is being developed for the species or 
stocks.
    We are issuing a permit under MMPA section 101(a)(5)(E) to vessels 
registered in the BSAI pollock trawl and BSAI flatfish trawl fisheries 
to incidentally take individuals from the WNP and CNP stocks of 
humpback whales and the Western U.S. stock of Steller sea lions. 
Humpback whales and the western Distinct Population Segment of Steller 
sea lions are listed as endangered under the ESA. We have determined 
that incidental taking from these fisheries will have a negligible 
impact on these stocks, as documented in our NID (see ADDRESSES). We 
have also determined that recovery plans have been completed for 
humpback whales and Steller sea lions, and in accordance with MMPA 
section 118, a monitoring program is established for the fisheries and 
vessels are registered. Finally, we have determined that these 
fisheries and stocks meet the MMPA trigger for development of a TRP, 
but they are lower priorities compared to other marine mammal stocks 
and fisheries based on the levels of incidental mortality and serious 
injury (M/SI) and population levels and trends. Accordingly, 
development of TRPs for these three stocks in these two fisheries will 
be deferred under section 118, since other stocks/fisheries are higher 
priorities for any available funding for establishing new Take 
Reduction Teams. The basis for these determinations is further 
described below.
    We recognize that a proposed change to the ESA listing for humpback 
whales (80 FR 22303 April 21, 2015), if finalized, might affect the 
need for an MMPA 101(a)(5)(E) permit for these fisheries to 
incidentally take humpback whales. However, we are including humpback 
whales in this permit because the species is currently listed as 
endangered.
    Our proposed permit and draft NID addressed two other marine 
mammals (the Alaska stocks of bearded and ringed seals) and one other 
fishery (the BSAI Pacific cod longline fishery) (80 FR 78711, December 
17, 2015). On July 25, 2014, the U.S. District Court for the District 
of Alaska issued a memorandum decision in a lawsuit challenging the 
listing of bearded seals under the ESA (Alaska Oil and Gas Association 
v. Pritzker, Case No.4:13-cv-00018-RPB). The decision vacated our 
listing of the Beringia DPS of bearded seals as a threatened species. 
On March 11, 2016, the U.S. District Court for the District of Alaska 
issued a memorandum decision in a lawsuit challenging the listing of 
ringed seals under the ESA (Alaska Oil and Gas Association v. Pritzker, 
Case No.4:14-cv-00029-RRB). The decision vacated our listing of the 
Arctic subspecies of ringed seals as a threatened species. We are 
currently appealing these decisions. In the interim, our NID continues 
to evaluate the impacts of fisheries on the Alaska stocks of bearded 
and ringed seals under MMPA 101(a)(5)(E), but because the ESA listings 
for these two species are not currently in effect, we are not including 
them in this permit and they are not further discussed in this Notice. 
The BSAI Pacific cod longline fishery has incidental take of the Alaska 
stock of ringed seals but no other ESA-listed species. We evaluate the 
impacts of this fishery on the Alaska stock of ringed seals in our NID, 
but we are not including the fishery in this permit.
    A description of the two permitted fisheries can be found in the 
NID and the Federal Register notice for the proposed permit (80 FR 
78711, December 17, 2015). These federally-managed fisheries take place 
inside both state waters (from the coastline out to three nautical 
miles) and federal waters (three to two hundred nautical miles from 
shore). The federally-managed fisheries inside Alaska state waters are 
often referred to as state ``parallel'' fisheries and are included in 
this authorization. All other Category II fisheries that interact with 
ESA-listed marine mammal stocks observed off the coasts of Alaska are 
state-managed fisheries (as opposed to state parallel fisheries), and 
are not included in 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.

Basis for Determining Negligible Impact

    As described above, prior to issuing the permit, we must determine 
if M/SI incidental to commercial fisheries will have a negligible 
impact on the affected marine mammal species or stocks. We satisfied 
this requirement through completion of a NID (see ADDRESSES).
    Although the MMPA does not define ``negligible impact,'' we have 
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. 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 NID 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).
    In 1999, we proposed criteria to determine whether M/SI incidental 
to commercial fisheries will have a negligible impact on a listed 
marine mammal stock for MMPA section 101(a)(5)(E) permits (64 FR 28800, 
May 27, 1999). In applying the 1999 criteria, Criterion 1 is whether 
total known, assumed, or extrapolated human-caused M/SI is less than 10 
percent of the potential biological removal level (PBR) for the stock. 
If total known, assumed, or extrapolated human-caused M/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, 
we may use one of the other criteria as appropriate. Criterion 2 is 
satisfied if the total known, assumed, or extrapolated human-caused M/
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

[[Page 40872]]

that if total fisheries-related M/SI are greater than PBR, permits may 
not be issued for that species or stock.

Negligible Impact Determinations

    The NID provides a complete analysis of the criteria for 
determining whether commercial fisheries off Alaska are having a 
negligible impact on the WNP or CNP stocks of humpback whales or the 
Western U.S. stock of Steller sea lions. A summary of the analysis and 
subsequent determination follows. The analysis is based on the 2014 
marine mammal stock assessment reports (SARs), which estimate mean or 
minimum annual mortality for 2008-2012 from observed commercial 
fisheries and entanglement data from the NMFS Marine Mammal Health and 
Stranding Network. This is the most recent five-year period for which 
data were available and had been analyzed when the proposed permit and 
draft NID were being developed. In cases where available observer data 
are only available outside that time frame, as is the case for state-
managed fisheries, the most recent observer data are used.

Humpback Whale, WNP Stock

    Total fisheries-related M/SI per year (0.9, 30 percent of PBR) is 
greater than 10 percent of the stock's PBR but less than PBR (3.0). We 
expect only minor fluctuations in fisheries-related M/SI. The stock is 
considered to be increasing: The most recent abundance estimate 
represents a 6.7 percent annual rate of increase over the previous 
(1991-1993) estimate, though this rate is biased high to an unknown 
degree. Therefore, using Criterion 3 we determine that M/SI incidental 
to commercial fishing will have a negligible impact on the stock.

Humpback Whale, CNP Stock

    CNP humpback whales represent a case not considered by the existing 
criteria, but data support a negligible impact determination. Total 
annual human-caused M/SI (15.89, 19.19 percent of PBR) is well below 
the Criterion 2 M/SI threshold (i.e., below PBR) and is expected to 
remain so for the foreseeable future. Total annual fisheries-related M/
SI (3.95, 4.77 percent of PBR) is well below the Criterion 3 M/SI 
threshold (i.e, below PBR) with only minor fluctuations in fisheries-
related M/SI expected, and the population is increasing (4.9-10 percent 
per year, depending on the study and specific area). Therefore, we 
determine that M/SI incidental to commercial fishing will have a 
negligible impact on the stock.

Steller Sea Lion, Western U.S. Stock

    Total fisheries related M/SI per year (32.7, 11.2 percent of PBR) 
is greater than 10 percent of the stock's PBR, but less than PBR (292). 
We expect only minor fluctuations in fisheries-related M/SI. The level 
of total human-caused M/SI is estimated to be below PBR and is expected 
to remain below PBR for the foreseeable future. Survey data collected 
since 2000 indicate that Steller sea lion decline continues in the 
central and western Aleutian Islands but regional populations east of 
Samalga Pass have increased or are stable. Overall, the stock is 
increasing at an annual rate of 1.67 percent (non-pups) and 1.45 
percent (pups). Therefore, using Criterion 3 we determine that M/SI 
incidental to commercial fishing will have a negligible impact on this 
stock.

Conclusions for the Permit

    In conclusion, based on the negligible impact criteria outlined in 
1999 (64 FR 28800), the 2014 Alaska SARs, and the best scientific 
information and data available for the time period analyzed in this 
permit, we have determined that for a period of up to three years, M/SI 
incidental to the BSAI pollock trawl and BSAI flatfish trawl fisheries 
will have a negligible impact on the WNP and CNP stocks of humpback 
whales and the Western U.S. stock of Steller sea lions.
    The impacts on the human environment of continuing and modifying 
the Bering Sea trawl fisheries, including the taking of threatened and 
endangered species of marine mammals, were analyzed in the 2004 Alaska 
Groundfish Fisheries Programmatic Supplemental Environmental Impact 
Statement (PSEIS). The 2015 Alaska Groundfish Fisheries PSEIS 
Supplemental Information Report reviewed new information since 2004 and 
concluded that a new PSEIS was not necessary because (1) management 
changes to the fisheries since 2004 do not constitute a substantial 
change in the action, and all changes are consistent with the preferred 
alternative evaluated in the PSEIS, (2) the current status of the 
resources can be considered within the range of variability analyzed in 
the 2004 PSEIS, and (3) although new information exists regarding the 
impacts of the groundfish fisheries on resources, no information 
indicates that a new analysis would conclude that there is now a 
significant impact where the 2004 PSEIS concludes that the impact was 
insignificant.
    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 permit would have no additional impact to the human 
environment or effects on threatened or endangered species beyond those 
analyzed in these documents.

Recovery Plans

    Section 4(f) of the ESA requires that we develop recovery plans for 
ESA-listed species, unless such a plan will not promote the 
conservation of the species. Recovery Plans for humpback whales and 
Steller sea lions have been completed (see ADDRESSES).

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. MMPA registration for participants in the BSAI trawl 
fisheries has been integrated with the Federal groundfish limited entry 
permit process of the Federal Vessel Monitoring System.

Monitoring Program

    BSAI trawl fisheries authorized under this permit are monitored by 
NMFS-certified observers in the North Pacific Groundfish Observer 
Program. Observer coverage rates range from 50-100 percent. 
Accordingly, as required by MMPA section 118, a monitoring program is 
in place for the BSAI pollock trawl and flatfish trawl fisheries.

Take Reduction Plans

    MMPA section 118 requires the development and implementation of a 
TRP in cases where a strategic stock interacts with a Category I or II 
fishery. The stocks covered under this permit are designated as 
strategic stocks under the MMPA because they are listed as endangered 
under the ESA (MMPA section 3(19)(C)). The two fisheries covered by 
this permit are Category II fisheries. Therefore, the three listed 
stocks and two fisheries meet the MMPA's triggers for convening a take 
reduction team (TRT) and developing a TRP.
    The obligations to develop and implement a TRP are further subject 
to the availability of funding. MMPA section 118(f)(3) contains 
specific priorities for developing TRPs. At this

[[Page 40873]]

time, we have 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 sections 118(f)(6)(A) 
and (f)(7), we used the most recent SARs and List of Fisheries (LOF) as 
the basis to determine our priorities for establishing TRTs and 
developing TRPs. Through this process, we evaluated the WNP and CNP 
stocks of humpback whale and the Western U.S. stock of Steller sea 
lions as lower priorities for establishing TRTs compared to other 
marine mammal stocks and fisheries, based on M/SI levels incidental to 
those fisheries and population levels and trends. Accordingly, given 
these factors and our priorities, developing TRPs for these three 
stocks in these two fisheries will be deferred under section 118, since 
other stocks/fisheries are a higher priority for any available funding 
for establishing new TRTs.

Current Permit

    As described above, all of the requirements to issue a permit to 
Federally-managed BSAI pollock trawl and BSAI flatfish trawl fisheries 
have been satisfied. Accordingly, we hereby issue a permit to 
participants in these two fisheries to incidentally take individuals 
from the WNP and CNP stocks of humpback whales and the Western U.S. 
stock of Steller sea lions. 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, M/SI must be reported to NMFS. If we determine 
at a later date that incidental M/SI from commercial fishing is having 
more than a negligible impact on these stocks, we may use our emergency 
authority under MMPA section 118 to protect the stocks 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 April 23, 2015 (80 FR 22713). 
With issuance of the current permit, we are not adding any fisheries to 
this list, but are revising the list of marine mammal species and 
stocks authorized in the BSAI pollock and flatfish trawl fisheries, and 
removing the Alaska Bering Sea sablefish pot fishery and the Alaska 
BSAI Pacific cod longline fishery (Table 1).


  Table 1--List of Fisheries Authorized To Take Specific Threatened and Endangered Marine Mammals Incidental to
                                          Commercial Fishing Operations
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            Fishery                     Category                           Marine mammal stock
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HI deep-set (tuna target)        I.....................  Humpback whale, CNP stock.
 longline.                                               Sperm whale, Hawaii stock.
                                                         False killer whale, MHI IFKW stock.
CA thresher shark/swordfish      I.....................  Fin whale, CA/OR/WA stock.
 drift gillnet fishery (>14 in                           Humpback whale, CA/OR/WA stock.
 mesh).                                                  Sperm whale, CA/OR/WA stock.
HI shallow-set (swordfish        II....................  Humpback whale, CNP stock.
 target) longline/set line.
AK Bering Sea/Aleutian Islands   II....................  Humpback whale, WNP stock.
 flatfish trawl.                                         Humpback whale, CNP stock.
                                                         Steller sea lion, Western U.S. stock.
AK Bering Sea/Aleutian Island    II....................  Humpback whale, WNP stock.
 pollock trawl.                                          Humpback whale, CNP stock.
                                                         Steller sea lion, Western U.S. stock.
WA/OR/CA sablefish pot fishery.  II....................  Humpback whale, CA/OR/WA stock.
----------------------------------------------------------------------------------------------------------------

Comments and Responses

    NMFS received three comment letters on the proposed permit and 
draft NID. The Marine Mammal Commission (Commission) supported issuing 
the permit while two other commenters, Center for Biological Diversity 
(Center) and an individual, opposed issuing the permit. Only comments 
pertaining to the draft NID and proposed permit are responded to in 
this notice.

General Comments

    Comment 1: The Center urged NMFS to consult under ESA section 7 on 
issuing the permit.
    Response: This MMPA section 101(a)(5)(E) permit is not a stand-
alone action and does not require separate ESA section 7 consultation. 
NMFS has consulted under ESA section 7 on the BSAI groundfish fishery 
management plans. The resulting biological opinions analyze the impact 
of the fishery-related mortalities on ESA-listed marine mammals 
including the five species analyzed in the NID. This MMPA section 
101(a)(5)(E) permit authorizes take of ESA-listed marine mammals under 
the MMPA while the biological opinions authorize take of ESA-listed 
marine mammals under the ESA.
    Comment 2: The Center recommends that NMFS include state-managed 
fisheries under this permit. The Center feels that by not including 
state fisheries in the permit, NMFS is undermining conservation of 
marine mammals because it implies that state-managed fisheries are not 
subject to the same take prohibitions as federal fisheries. The Center 
notes that NMFS has the authority and duty to manage state-managed 
fisheries under MMPA section 118.
    Response: MMPA section 101(a)(5)(E) is one of the links between the 
MMPA and the ESA. For federally-managed fisheries, NMFS has a federal 
nexus to consult under ESA section 7 on the activity that may affect 
ESA-listed species (e.g., commercial fishing by issuing a fishery 
management plan or an amendment to such a plan). As noted in response 
to Comment 1, this MMPA permit is linked to federal management of the 
BSAI groundfish fisheries. The NID considered state fisheries in the 
analysis, including those with mortality data preceding the time frame 
for the analysis if those data were the best available, so that impacts 
of takes from the federally-managed fisheries could be understood in 
the context of all known fishery-related takes . However, NMFS is not 
authorizing incidental take of ESA-listed species in state fisheries.
    Take of ESA-listed marine mammals in state-managed fisheries is 
subject to the same prohibitions as federally-managed fisheries. But, 
without the federal nexus, ESA section 7 does not apply to state 
fisheries. States are responsible for applying for an incidental take 
permit under ESA

[[Page 40874]]

section 10(a)(1)(B) to obtain authorization for takes of ESA-listed 
species that occur incidental to an otherwise authorized activity 
(e.g., state-managed fisheries). Unless a state obtains such a permit, 
any take of ESA-listed species would be unauthorized. NMFS cannot 
require that a state apply for such a permit; it is the state's 
responsibility to do so as part of managing state fisheries.
    MMPA section 118 provides the framework for addressing marine 
mammal interactions in commercial fisheries nationwide and includes 
various metrics and guidance for managing the take reduction program as 
a whole. First, the program authorizes incidental take of non-ESA-
listed marine mammals in commercial fisheries classified as Category I 
or II (no authorization is required for Category III fisheries). Then, 
the program directs efforts to reduce M/SI incidental to commercial 
fisheries and provides for priority-setting when funding is limited. 
TRPs can and do address marine mammal M/SI in state-managed fisheries. 
NMFS can authorize incidental take of endangered marine mammals in 
state fisheries, but is not doing so through this action.
    Comment 3: The Center believes that additional mitigation measures 
to reduce entanglement should be included in the permit given the 
MMPA's requirement to develop a TRP. Therefore, the Center feels that 
NMFS cannot authorize these fisheries until such a plan has been 
developed. Further, the Center requests that NMFS convene a take 
reduction team to develop a TRP.
    Response: As noted in the Federal Register notice for the proposed 
permit (80 FR 78711, December 17, 2015), take reduction requirements 
are triggered when a strategic stock is killed or seriously injured in 
Category I or II fisheries. All the stocks addressed by this permit are 
designated as strategic because they are listed under the ESA (MMPA 
section 2(19)(C)) and not because fishery-related M/SI exceeds PBR. 
MMPA section 118 is explicitly designed to reduce fishery-related M/SI 
below PBR, so while required by the MMPA, TRPs may not be necessary for 
addressing threats affecting recovery of the species. In recognition of 
this, a 2008 review of the take reduction program by the Government 
Accountability Office recommended that Congress consider amending the 
statutory requirements for establishing a take reduction team to 
stipulate that not only must a marine mammal stock be strategic and 
interacting with a Category I or II fishery, but that the fishery with 
which the marine mammal stock interacts causes at least occasional 
incidental mortality or serious injury of that particular marine mammal 
stock (i.e, convening teams and developing plans for stocks where 
fishery-related M/SI is low is contrary to the purpose of this 
section). Regardless, the obligation to develop and implement TRPs is 
subject to the availability of funding. MMPA section 118(f)(3) contains 
specific priorities for developing TRPs. As stated above under 
Conclusions for the Permit, all stocks authorized to be incidentally 
taken under this permit are currently lower priorities for developing 
TRPs compared to other marine mammal stocks and commercial fisheries.
    Comment 4: The Center recommends that NMFS include the North 
Pacific stock of sperm whales in the NID analysis and, if warranted, 
include this stock under this permit. The commenter notes that the 
draft NID contains conflicting information, in that at page 19 it 
reports ``M/SI of sperm whales only occurred in the Gulf of Alaska 
(GOA) sablefish longline fishery (a Category III fishery) in 2007'' but 
Table 5 reflects one observed fishery mortality or serious injury. 
Further, the draft stock assessment report for sperm whales indicates 
four serious injuries of sperm whales incidental to the Gulf of Alaska 
sablefish longline fishery (two each observed in 2012 and 2013). 
However, NMFS did not provide extrapolated estimates of sperm whale 
serious injury and mortality stating they were unavailable. 
Additionally, the Center notes, according to NMFS, because the 
population size and the PBR for sperm whales are unknown, any fishery 
interacting with the sperm whale is precluded from qualifying as 
Category I or II.
    Response: The commenter refers to the M/SI of a sperm whale from 
2007, which precedes the time frame analyzed for this permit (2008-
2012). Table 5 refers to M/SI of Steller sea lions and not to sperm 
whales. We reviewed the 2014 and 2015 SARs for North Pacific sperm 
whales per the comment, and recognize that NMFS mistakenly omitted the 
2012 serious injuries incidental to the GOA sablefish longline fishery 
in the 2014 SAR, which includes 2008-2012 data. The 2015 draft SAR 
includes the 2012 observed serious injuries and notes that the 
extrapolated estimate is not available. NMFS is currently analyzing 
these data and intends to include the resulting bycatch estimates in 
the 2016 draft SAR. When this information has been incorporated into 
the 2016 draft SAR, NMFS will then evaluate it for the next annual LOF, 
likely the 2017 LOF. If the GOA sablefish longline fishery is elevated 
to Category I or II in a future LOF, NMFS will evaluate the need for 
incidental take permit under MMPA section 101(a)(5)(E). This process is 
iterative and we will evaluate the best available data at the time we 
undertake our analysis to issue these permits.
    The commenter notes that stocks without minimum abundance estimates 
are precluded from being considered in the LOF tier analysis, thereby 
precluding any fisheries that kill or seriously injure those stocks 
from being classified as Category I or II fisheries. This is incorrect. 
NMFS may classify fisheries by analogy to other similar fisheries based 
on various factors (50 CFR 229.2). The commenter references other 
Category I and II fisheries that take sperm whales, including two 
pelagic longline fisheries and a drift gillnet fishery. These gear 
types are not analogous to the GOA sablefish longline fishery, which is 
a demersal longline fishery, in that the gear used and the fishing 
practices are substantially different from one another. Both fishing 
gear and fishing practices are typically related to the risk of 
entanglement. That said, NMFS will conduct a full evaluation of this 
stock and this fishery pursuant to the LOF.

Humpback Whales

    Comment 5: The notice and draft NID state that the population of 
Western North Pacific humpback whales is estimated to be increasing at 
an annual rate of 6.7 percent, but the Commission believes the rate of 
increase is likely an overestimate because the 2004-06 study included 
an area not surveyed in the 1991-1993 study. Therefore, the Commission 
suggested NMFS consider estimating the rate of increase based only on 
data from sites surveyed in both 1991-93 and 2004-06 to evaluate 
whether that analysis indicates a clearly stable or increasing trend, 
which would support the draft NID.
    Response: This analysis is part of a larger ongoing analysis of the 
SPLASH (Structure of Populations, Levels of Abundance and Status of 
Humpback Whales in the North Pacific) effort. When the results are 
available, we will evaluate whether any of the findings in the NID 
would change and take appropriate action at that time.
    Comment 6: The Commission is concerned that the WNP population of 
humpback whales may consist of two distinct population segments (DPS) 
under the recent proposed ESA listing rule (80 FR 22304, April 21, 
2015) whose feeding range overlaps that of the CNP population of 
humpbacks. If that is

[[Page 40875]]

the case, population trends for the two putative western North Pacific 
DPSs may not be the same and the BSAI groundfish fisheries could have a 
negligible impact on one stock, but more than a negligible impact on 
the other. Thus, the Commission encourages NMFS to collect and analyze 
additional information on the discreteness of the two putative Western 
North Pacific DPSs identified by the humpback whale Biological Review 
Team.
    Response: For the NID, we analyzed the stocks as currently defined 
in the SARs. The ESA listing rule has not been finalized. NMFS uses the 
best available data at the time of the analysis and generally does not 
collect new data for the purposes of issuing an MMPA section 
101(a)(5)(E) permit.
    Comment 7: The Commission recommended that NMFS consult with 
researchers to gather data and develop new abundance estimates for the 
Western North Pacific stock of humpback whales before issuing a 
subsequent permit.
    Response: NMFS agrees that additional, new data would be useful and 
will continue to collaborate with those researchers collecting data on 
the Western North Pacific stock of humpback whales.
    Comment 8: The Commission encouraged NMFS to instruct fishery 
observers to collect tissue samples or photographs of all humpback 
whales take incidental to fisheries to appropriately identify the 
stock.
    Response: Fishery observers are already instructed to take 
photographs and collect tissue samples when possible. In some cases, as 
examples, the interaction occurs too quickly or too far from the vessel 
and photographs/tissue samples may not be possible. Regardless, it has 
been our practice to assign a take to both stocks so that we can 
evaluate the impact of that mortality on each stock separately.
    Comment 9: The Center recommends that for humpback whales NMFS 
include the most recent observer data from 2013 and the resulting M/SI 
estimate in the NID. Specifically, the Center suggests that NMFS 
consider extrapolating observer data from all fisheries, including the 
Southeast Alaska drift gillnet fishery, to calculate mean or minimum 
annual mortality estimates as well as including stranding data from the 
marine mammal unusual mortality event that began in May 2015 in the 
western GOA. The Center feels that given the 2013 observer data and the 
2015 stranding data, a significant number of animals may have been 
removed from the population and the extent of M/SI incidental to 
commercial fishing is unacceptably high.
    Response: These permits are iterative and cyclical; they are 
effective for 3 years per the MMPA. This means that NMFS is regularly 
considering the most recent information available in the NID analysis 
to support issuing these permits every three years. This particular 
permit is based on the 2014 final SAR, which includes 2008-2012 data. 
We will consider 2013 and 2015 data in future iterations of this 
permit. New data become available all the time; if we are constantly 
updating and revising the analysis it will hinder our ability to take 
action and issue permit decisions.

Steller Sea Lions

    Comment 10: The Commission recommends that NMFS consider amending 
its criteria for making NIDs under section 101(a)(5)(E) of the MMPA to 
ensure that for declining marine mammal populations listed as 
endangered or threatened under the ESA, the estimated M/SI by 
commercial fisheries does not result in a statistically significantly 
increase in the rate of decline across a large portion of their 
geographic range. With regard to the western U.S. stock of Steller sea 
lions, before making a NID for the fisheries subject to this action, 
NMFS should evaluate M/SI in the three BSAI groundfish fisheries 
relative to the species' abundance in areas west of Samalga Pass where 
sea lion numbers have been declining.
    Response: NMFS appreciates the suggestion for amending the NID 
criteria and we will consider as we revise those criteria. As we note 
in the response to Comment 2, NMFS uses the best available information 
at the time of the NID analysis, including the currently identified 
range and trends as provided in the most recent SAR. Therefore, we are 
not conducting a new analysis at this time. With respect to observing 
the fishery, it is currently monitored both east and west of Samalga 
Pass and those data are incorporated into the stock assessment.

Bearded and Ringed Seals

    Comment 11: The Commission notes that if, indeed, only 2 bearded 
seals are killed or seriously injured each year by commercial fisheries 
out of nearly 6,800 removals from the population, it is difficult to 
see how fisheries-related mortality can be considered significant even 
if overall PBR is exceeded. Given the removals of bearded and ringed 
seals by subsistence hunting, the Commission recommends that NMFS 
consider amending its criteria for making NIDs under section 
101(a)(5)(E) of the MMPA to cover situations where (1) the level of 
mortality and serious injury exceeds or likely exceeds PBR primarily 
due to subsistence hunting, (2) subsistence hunting is determined to be 
sustainable, and (3) fishery-related take is a very small fraction of 
overall removals (e.g., <1.0 percent).
    Response: NMFS appreciates the suggestion for amending the NID 
criteria and we will consider it as we revise those criteria.
    Comment 12: The Commission raised concerns about the availability 
of reliable and up-to-date estimates of population size and subsistence 
harvest and feels that NMFS is not providing adequate funding to 
generate these estimates. Given the importance of subsistence hunting 
to Alaska Native communities and the possible effects of climate change 
on the abundance and health of ice seals, the Commission believes that 
NMFS must (1) in cooperation with its co-management partners, identify 
the essential components of ongoing programs to monitor the abundance 
and trends of ice seal populations and the number of seals taken by 
Native hunters, and (2) ensure that funding is adequate to implement 
those programs. The Commission therefore recommends that NMFS consult 
with the Alaska Native Ice Seal Committee to identify the steps 
necessary to carry out adequate ice seal population surveys and harvest 
monitoring programs, and seek the funding necessary to implement them. 
The Commission recognizes NMFS's constraints on funding for marine 
mammal research and management, but believes it is imperative that 
these needs receive higher priority.
    Response: NMFS recently conducted a protected species science 
program review of the Alaska Fisheries Science Center (AFSC). The 
review generated several recommendations related to ice seals. 
Recommendation 1.5 directs NMFS to develop an explicit strategy for 
assessing all stocks, considering costs, likely available funds, and 
scientific and management priorities. In its response, in 2015-2016, 
the NMFS AFSC committed to developing a proposed strategy for assessing 
all marine mammal stocks and including that strategy and a system for 
prioritizing those assessments in the 5-year plan for the AFSC. 
Regardless, abundance surveys for ice seals are ongoing, with another 
scheduled for 2016, which are intended to result in an abundance 
estimate. Additionally, Recommendation 1.6 directs NMFS to pursue 
support for bycatch and harvest monitoring in particularly risky

[[Page 40876]]

fisheries or regions. The AFSC response notes that monitoring harvest 
levels is currently unfunded, and while resources are limited the AFSC 
will work with the NMFS Alaska Regional Office to develop a joint list 
of priorities for understanding harvest levels so both entities can 
solicit additional resources and coordinate to achieve this objective.

    Dated: June 20, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-14866 Filed 6-22-16; 8:45 am]
 BILLING CODE 3510-22-P