Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Proposed Issuance of Permit, 2954-2960 [2017-00265]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 6 (Tuesday, January 10, 2017)]
[Notices]
[Pages 2954-2960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00265]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE909


Taking of Threatened or Endangered Marine Mammals Incidental to 
Commercial Fishing Operations; Proposed Issuance of Permit

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), are 
proposing to issue a permit for a period of three years 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 the Marine Mammal Protection Act (MMPA), by the 
California (CA) thresher shark/swordfish drift gillnet fishery (>14 
inch mesh) and the Washington (WA)/Oregon (OR)/CA sablefish pot 
fishery. In accordance with the MMPA, NMFS issues this permit provided 
that it can make the determination 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

[[Page 2955]]

gillnet fishery (>14 inch mesh) and the WA/OR/CA sablefish pot 
fisheries are registered. We have made a preliminary determination that 
incidental taking from commercial fishing will have a negligible impact 
on the ESA-listed humpback whale (CA/OR/WA stock) and sperm whale (CA/
OR/WA stock). Recovery plans have been completed for humpback and sperm 
whales. We solicit 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 on this action and supporting documents must be 
received by February 9, 2017.

ADDRESSES: You may submit comments on this document and the draft 
negligible impact determination, which are available on the Internet at 
the following address: https://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/fisheries_interactions.html. Recovery 
plans for these two species are available on the Internet at the 
following address: https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals.
    You may submit comments on this document or the draft negligible 
impact determination, identified by NOAA-NMFS-2016-0129, by either 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-2016-0129, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Send written comments 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. Include the identifier ``NOAA-
NMFS-2016-0129'' in the comments.
    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: Christina Fahy, NMFS West Coast 
Region, (562) 980-4023 or Christina.Fahy@noaa.gov; or Shannon 
Bettridge, NMFS Office of Protected Resources, (301) 427-8402 or 
Shannon.Bettridge@noaa.gov.

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 three 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.
    We propose to issue a permit under MMPA section 101(a)(5)(E) to 
vessels registered in the CA thresher shark/swordfish drift gillnet 
fishery (>14 inch mesh) to incidentally take individuals from two 
stocks of 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 2016 
MMPA List of Fisheries (LOF; 81 FR 20550, April 8, 2016), the final 
2015 U.S. Pacific Marine Mammal Stock Assessment Report (SAR) (Carretta 
et al. 2016), Carretta and Moore (2014), Moore and Barlow (2014), 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 available scientific information and 
available data, and other relevant sources.
    Based on observer data and marine mammal injury reporting forms, 
vessels operating in the Category I CA thresher shark/swordfish drift 
gillnet fishery (>14 inch mesh) and the Category II WA/OR/CA sablefish 
pot fishery are the two Federally-managed 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 brief description of these fisheries can be found 
below. The CA thresher shark/swordfish drift gillnet fishery (>14 inch 
mesh), is the only Federally-managed Category I fishery operating off 
the coast of California. The WA/OR/CA sablefish pot fishery is the only 
Federally-managed Category II fishery operating off the coasts of 
California, Oregon, and Washington. 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; however, M/SI related 
to these fisheries and all other human sources was evaluated in the 
draft NID. 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 the 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 NID. We clarify that for purposes 
of the draft negligible impact analysis, incidental M/SI from 
commercial fisheries includes M/SI from entanglement in fishing gear or 
ingestion of fishing gear. Indirect effects,

[[Page 2956]]

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'' (50 CFR 216.103), and through scientific analysis, peer 
review, and public notice developed a quantitative approach for 
determining negligible impact. 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 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 NIDs 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 human-related M/SI is less than 10 percent of the stock's 
potential biological removal level (PBR). If total human-related 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, 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 human-related M/SI is greater 
than PBR, but commercial 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 commercial 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 commercial fisheries-related M/SI is greater than PBR, permits 
may not be issued for that species or stock.
    We considered two time frames for this analysis: 5 years (2010-
2014) and 14 years (2001-2014). The first time frame we considered for 
both stocks of whales is the most recent five-year period for which 
data are available and have been analyzed (here, January 1, 2010 
through December 31, 2014) and is typically used for NID analyses. A 
five-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.
    In addition, 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 (>=14 inch 
mesh). 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 humpback whale and the sperm whale stocks are the 
only ESA-listed marine mammal species interacting with the CA thresher 
shark/swordfish drift gillnet fishery (>=14 inch mesh) that meet the 
conditions described in Carretta and Moore (2014): These stocks have 
relatively small minimum population estimates and have been recorded as 
having been incidentally killed or seriously injured in rare events (in 
the CA thresher shark/swordfish drift gillnet fishery (>=14 inch mesh). 
The CA/OR/WA stock of humpback whale has also been recorded as having 
been rarely incidentally killed or seriously injured in the WA/OR/CA 
sablefish pot fishery.
    In 2001, a time/area closure of the drift gillnet fishery off 
central and northern California/southern Oregon to protect leatherback 
sea turtles was implemented through regulations, and resulted in a 
decrease in overall fishing effort and a shift in effort to southern 
California. Therefore, the post-2000 time period best represents the 
current spatial state of the fishery, so we used the 14-year period 
post-2000 to calculate mean annual mortality estimate for these two 
stocks of whales, based on recommendations contained in the GAMMS and 
Carretta and Moore (2014). This time frame also provides a 
comprehensive look at the WA/OR/CA sablefish pot fishery, given changes 
in oceanographic conditions, fishing practices, and reporting and 
stranding records.
    A conservative, or precautionary, approach is taken in these 
analyses for evaluating the negligible impact of fisheries and other 
sources of injury or mortality, such as recreational fisheries and ship 
strikes, on these stocks. In certain cases, the maximum estimate of M/
SI was used for the calculations. For example, if a ship strike 
occurred, but M/SI was not observed on scene or confirmed by necropsy 
of the stranded animal, and if further review of reports and other 
sources then confirmed M/SI, it was assumed for purposes of this 
analysis, that M/SI occurred. Additionally, M/SI from unknown or 
unidentified fisheries was conservatively considered to be from 
commercial fisheries. Furthermore, in using two time frames for the 
negligible impact analyses (2001-2014 and 2010-2014), we took a 
precautionary approach by ensuring that a NID could be made for both 
time frames considered.

Negligible Impact Determinations

    Below is a summary of our application of the negligible impact 
criteria and determination regarding the effects of commercial 
fisheries off the U.S. west coast on the CA/OR/WA stocks of humpback 
whale and sperm whale.

Criterion 1 Analysis

    Criterion 1 would be satisfied if the total human-related M/SI is 
less than 10 percent of PBR.
    The 5-year (2010-2014) average annual human-related M/SI to the CA/
OR/WA stock of humpback whales is 6.8 or 62.0 percent of the PBR 
(11.0). The 14-year (2001-2014) average annual human-related M/SI to 
the CA/OR/WA

[[Page 2957]]

stock of humpback whales is 5.1 or 46.4 percent of the PBR. The total 
annual human-related M/SI for this stock of humpback whales is not less 
than 10 percent of PBR for both time frames considered.
    The 5-year (2010-2014) average annual human-related M/SI of the CA/
OR/WA stock of sperm whales is 0.6 or 22.2 percent of the PBR (2.7). 
The 14-year (2001-2014) average annual human-related M/SI to the CA/OR/
WA stock of sperm whales from all human sources is 0.9 or 33.3 percent 
of the PBR. The total annual human-caused M/SI for this stock of sperm 
whales is not less than 10 percent of the PBR for both time frames 
considered.
    Criterion 1 was not satisfied because the total annual human-
related M/SI for these stocks is not less than 10 percent of PBR for 
the time periods considered. As a result, the other criteria must be 
examined.

Criterion 2 Analysis

    Criterion 2 would be satisfied if total human-related M/SI is 
greater than PBR and the total fisheries-related mortality is less than 
10 percent of PBR. This criterion was not satisfied because total 
human-related M/SI (detailed above) is less than PBR, and total 
fisheries-related mortality (detailed below) is greater than 10 percent 
of PBR for each stock (both time frames analyzed). As a result, the 
other criteria were examined.

Criterion 3 Analysis

    Unlike Criteria 1 and 2, which examine total human-related M/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 annual average fishery-related M/SI from all commercial fisheries 
is greater than 10 percent of and less than 100 percent of PBR, and the 
population is increasing (6-7 percent per year). The 5-year (2010-2014) 
average annual fishery-related M/SI from all commercial fisheries for 
the CA/OR/WA humpback whale stock is estimated at 5.6 or 51.0 percent 
of PBR and 4.1 or 37.3 percent of PBR for the 14-year period (2001-
2014), which is between 10 percent and 100 percent of PBR. In addition, 
the stock has experienced a positive growth rate (6-7 percent per 
year). Accordingly, Criterion 3 is satisfied in determining that M/SI 
of the CA/OR/WA humpback whale stock incidental to commercial fishing 
would have a negligible impact on the stock.
    In 2015, there was a significant increase in reports of entangled 
humpback whales off the U.S. west coast, primarily in the state-managed 
pot/trap fisheries. In addition, there were two fatal ship strikes of 
humpback whales. We evaluated the 2015 preliminary raw entanglement and 
ship strike data to understand how future data may impact this type of 
analysis. Serious injury determinations for 2015 will be completed in 
early 2017. If not all entanglements or ship strikes are determined to 
be M/SI, it is possible to conclude there is a negligible impact under 
Criterion 3 for both the 15-year and five-year time frames. Based on 
past humpback whale injury determinations from 2007 through 2014, 84 
percent were determined to be M/SI.
    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 5-year (2010-
2014) annual average fishery-related M/SI from all commercial fisheries 
for the CA/OR/WA sperm whale stock is estimated at 0.4 or 14.8 percent 
of PBR and 0.6 or 22.2 percent of PBR for the 14-year average (2001-
2014), which is between 10 percent and 100 percent of PBR. The 
population is considered to be stable.
    In 2015, there were no reports of entangled or ship-struck sperm 
whales. Therefore, the addition of one more year of data would not 
change the conclusion reached in the draft NID.
    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.
    In conclusion, based on the criteria outlined in 1999 (64 FR 
28800), the final 2015 U.S. Pacific SAR (Carretta et al,. 2016), 
Carretta and Moore (2014), Moore and Barlow (2014), 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 (>=14 inch mesh) and the WA/OR/CA 
sablefish pot fishery will have a negligible impact on the CA/OR/WA 
stock of humpback whales and the CA thresher shark/swordfish drift 
gillnet fishery (>=14 inch mesh) will have a negligible impact on the 
CA/OR/WA stock of sperm whales. NMFS therefore proposes to issue the 
MMPA 101(a)(5)(E) permit. 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 is an individual review of the two Federally-
authorized fisheries classified as Category I and II in the 2016 LOF 
(81 FR 20550) which are known through observer records, fisher self-
reports, and confirmed entanglement reports 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 
(2011) Biological Opinion on the operation of the Pacific groundfish 
fishery, which includes the WA/OR/CA sablefish pot fishery; the NMFS 
(2013) Biological Opinion for the CA thresher shark/swordfish drift 
gillnet fishery (>=14 inch mesh); the 2015 SAR (Carretta et al. 2016); 
and the draft NID.

California Thresher Shark/Swordfish Drift Gillnet Fishery (>14 Inch 
Mesh)

    Participants in the CA thresher shark/swordfish drift gillnet 
fishery (>=14 inch mesh) are 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 inch 
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 inch 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 inch mesh) has decreased from 148 permits issued and 98 
active vessels in 1998 to 72 permits issued and

[[Page 2958]]

18 active vessels in 2016. 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 fishery targets swordfish and thresher shark. It operates 
outside of state waters to about 150 nautical miles (nm) offshore 
ranging from the U.S./Mexico border in the south to the Oregon border 
in the north, depending on sea surface temperature conditions. 
Regulations restrict the fishery to waters outside 200 nm from February 
1 through April 30, and 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 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 inch 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 
drift gillnet fishery to protect loggerhead turtles during a forecast 
or occurring El Ni[ntilde]o 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 inch 
mesh) since July 1990 to the present. The objectives of the NMFS 
observer program are to record, among other things, information on non-
target fish species and protected species interactions. NMFS typically 
targets 20 percent observer coverage of the annual sets by the CA 
thresher shark/swordfish drift gillnet fishery (>=14 inch mesh) fleet, 
with close to 100 percent of net retrievals monitored on observed trips 
for, among other things, species identification and enumeration.

WA/OR/CA Sablefish Pot Fishery

    The WA/OR/CA sablefish pot fishery targets sablefish using 
trapezoid, conical, or rectangular steel frame traps, wrapped with >=2 
inch nylon webbing. The fishery generally sets gear at depths between 
80 and 300 fathoms off the west coast of the U.S. The fishery is 
managed under regulations implementing the Pacific Coast Groundfish FMP 
developed by the Pacific Fishery Management Council. There are four 
distinct segments of the Pacific coast groundfish fishery where 
sablefish may be harvested, by some or all of the participants, with 
pot gear: Limited entry fixed gear sablefish primary fishery and daily 
trip limit fishery; the trawl individual fishing quota (IFQ) fishery 
when vessels are ``gear switching'' (allowed since 2011); and the open 
access sablefish daily trip limit fishery. Further information about 
each of these segments of the groundfish fishery that may harvest 
sablefish with pot gear is provided below.
    The limited entry fixed gear sablefish primary fishery occurs 
between 36[deg] N. latitude (lat.) and the U.S.--Canada border and 
requires at least one limited entry permit, with both a fixed gear 
endorsement and a sablefish endorsement, be registered to a vessel. The 
primary fishery 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. Fishing 
outside of the primary season or after fulfillment of tier quota is 
allowed, subject to limited entry fixed gear weekly and two-month 
cumulative limits. The limited entry permits are currently associated 
with vessels spread throughout the Pacific Northwest from Northern 
California through Washington, and some vessels registered to limited 
entry permits also fish in waters off Alaska. Up to three sablefish-
endorsed permits may be stacked for cumulative landings on one vessel 
and may include both trap and longline gear endorsements.
    The limited entry fixed gear daily trip limit fishery occurs coast 
wide, year-round. Vessels registered to limited entry permits with pot/
trap gear endorsements may harvest sablefish with pot/trap gear year 
round, according to the applicable weekly and two-month cumulative 
limits, applicable to their time/area. Accounting for stacking of 
permits, there were 41 vessels using traps only and five using a 
combination of traps and longline to harvest sablefish in 2014.
    The vessels participating in the limited entry trawl Shore-based 
IFQ Program may choose to harvest their sablefish quota with non-trawl 
gear, including pot gear, under provisions of the Program that allow 
for an activity called ``gear switching.'' Vessels fishing in the 
Shore-based IFQ Program under gear switching provisions are subject to 
most of the same requirements as those vessels fishing trawl gear to 
harvest their groundfish quota, including 100 percent observer 
coverage, fishing on their own individual quota, etc. However, 
regulations that apply specifically to non-trawl gears, like gear-
specific area and depth restrictions, apply to vessels gear switching.
    The open access fishery is comprised of vessels not registered to 
limited entry permits, is available to fishermen year round, and 
managed throughout the year with daily, weekly, and two-month trip 
limits. NOAA's Northwest Fisheries Science Center estimates 204 
fishermen (number of state-issued 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).
    Participants in the sablefish fishery are required to keep daily 
logs of fishing activities. Depending on the area of the coast, fishing 
for sablefish with non-trawl gear (e.g. pot gear, etc.) is prohibited 
in certain depths by the Groundfish Non-Trawl Rockfish Conservation 
Area. Specific depth restrictions vary, and may be modified during the 
year, but generally prohibit setting sablefish pots between 30 fathoms 
and 100 fathoms (from Washington to central California) and between 60 
fathoms and 150 fathoms (southern California). Federal regulations 
pertaining to depth-based closures for limited entry fixed gear can be 
found in Table 2 (North and South) of 50 Code of Federal Regulations 
(CFR) part 660, subpart E, and open access closures can be found in 
Table 3, 50 CFR part 660, subpart F. The state management agencies may 
close additional areas. For example, south of Point Arguello, near 
Santa Barbara, the minimum depth for setting traps targeting sablefish 
is 200 fathoms. Multiple traps are connected to a common ground line 
made of nylon or nylon blend and \5/16\th or \3/8\th inch wide. Limited 
entry permit holders commonly fish 20 to 50 traps per string, as 
opposed to open access fishermen who generally fish several smaller 
strings; up to eight strings with one to four traps per string, each 
with a float line and buoy stick.

Conclusions for Proposed Permit

    Based on the individual review of the fisheries and the certainty 
of relevant data, and as described in the

[[Page 2959]]

accompanying draft NID, NMFS concludes that the M/SI incidental to the 
CA thresher shark/swordfish drift gillnet fishery (=14 inch 
mesh) and the WA/OR/CA sablefish pot fishery will have a negligible 
impact on the CA/OR/WA stock of humpback whales and the CA thresher 
shark/swordfish drift gillnet fishery (>=14 inch mesh) will have a 
negligible impact on the CA/OR/WA stock of sperm whales.
    The National Environmental Policy Act (NEPA) requires Federal 
agencies to evaluate the impacts of alternatives for their actions on 
the human environment. The impacts on the human environment of 
continuing and modifying the CA thresher shark/swordfish 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, 2011) and the 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.

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 
provide the information needed by NMFS to register their vessels for 
the MMPA incidental take authorization through the Federal limited 
entry permit process. 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 by NMFS since 1990. Levels of observer coverage 
vary over years but are adequate to produce reliable estimates of M/SI 
of listed species (e.g., from 2001-2014, coverage ranged from 
approximately 12.0 to 37 percent). As part of the West Coast groundfish 
fishery and Magnuson-Stevens Fishery Conservation and Management Act 
objectives, the WA/OR/CA limited entry sablefish pot fishery, as 
managed under the groundfish FMP, has been observed between 13 percent 
and 57 percent between 2002 and 2014. 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 inch 
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 
currently not one in place for the sablefish 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. 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 strategic stocks that interact with Category I 
or Category II fisheries. As provided in MMPA section 118(f)(6)(A) and 
(f)(7), NMFS uses the most recent SAR and LOF as the basis to determine 
its priorities for establishing TRTs and developing TRPs. Through this 
process for developing TRTs, in 2015, 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 a TRP for the WA/OR/CA sablefish pot trap fishery and 
other similar Category II fisheries will be currently 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 drift gillnet fishery (>=14 
inch mesh) and WA/OR/CA sablefish pot fishery. Accordingly, NMFS 
proposes to issue a permit to participants in these Category I and 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

[[Page 2960]]

marine mammals to be authorized in Category III fisheries, any 
mortality or serious injury must be reported to NMFS. NMFS solicits 
public comments on the proposed permit and the preliminary 
determinations supporting the permit.

    Dated: January 4, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-00265 Filed 1-9-17; 8:45 am]
 BILLING CODE 3510-22-P