Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit, 69627-69632 [2021-26536]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 233 (Wednesday, December 8, 2021)]
[Notices]
[Pages 69627-69632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26536]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB556]


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: The National Marine Fisheries Service (NMFS) is issuing a 
permit for a period of 3 years to authorize the incidental, but not 
intentional, take of specific Endangered Species Act (ESA)-listed 
marine mammal species or stocks under the Marine Mammal Protection Act 
(MMPA), in the WA/OR/CA sablefish pot fishery.

DATES: The permit is effective for a 3-year period beginning December 
8, 2021.

ADDRESSES: Reference materials for the permit including the final 
negligible impact determination are available on the internet at 
https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-wa-or-ca-sablefish-pot or https://www.regulations.gov/docket/NOAA-NMFS-2021-0092. Other supporting 
information is available on the internet including: Recovery plans for 
the ESA-listed marine mammal species, https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act; 2021 MMPA List of Fisheries (LOF), https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables; the most recent Marine Mammal Stock 
Assessment Reports (SAR) by region, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region, and stock, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-
species-stock; and Take Reduction Teams and Plans, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.

FOR FURTHER INFORMATION CONTACT: Tina Fahy, NMFS West Coast Region, 
(562) 980-4023, [email protected]; or Jaclyn Taylor, NMFS Office 
of Protected Resources, (301) 427-8402, [email protected].

SUPPLEMENTARY INFORMATION: The MMPA requires NMFS to authorize the 
incidental take of ESA-listed marine mammals in commercial fisheries 
provided it can make the following determinations: (1) The incidental 
mortality and serious injury (M/SI) from commercial fisheries will have 
a negligible impact on the affected species or stocks; (2) a recovery 
plan for all affected species or stocks of threatened or endangered 
marine mammals has been developed or is being developed; and (3) where 
required under MMPA section 118, a take reduction plan has been 
developed or is being developed, a monitoring program is implemented, 
and vessels participating in the fishery are registered. NMFS has 
determined that the WA/OR/CA sablefish pot fishery meets these three 
requirements and is issuing a permit to the fishery to authorize the 
incidental take of ESA-listed marine mammal species or stocks under the 
MMPA for a period of 3 years.

Background

    The MMPA LOF classifies each commercial fishery as a Category I, 
II, or III fishery based on the level of mortality and injury of marine 
mammals occurring incidental to each fishery as defined in 50 CFR 
229.2. Category I and II fisheries must register with NMFS and are 
subsequently authorized to incidentally take marine mammals during 
commercial fishing operations. However, that authorization is limited 
to those marine mammals that are not listed as threatened or endangered 
under the ESA. Section 101(a)(5)(E) of the MMPA, 16 U.S.C. 1371, states 
that NMFS, as delegated by the Secretary of Commerce, for a period of 
up to three years shall allow the incidental, but not intentional, 
taking of marine mammal stocks designated as depleted because of their 
listing as an endangered species or threatened species 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 M/SI from commercial fisheries 
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.
    The LOF includes a list of marine mammal species or stocks 
incidentally killed or injured in each commercial fishery. The WA/OR/CA 
sablefish pot fishery is classified as a Category II fishery on the 
final 2021 LOF (86 FR 3028; January 14, 2021) based on occasional 
incidental M/SI of the CA/OR/WA stock of humpback whales. We evaluated 
ESA-listed stocks or species included on the 2021 MMPA LOF as killed or 
seriously injured following NMFS' Procedural Directive 02-238 ``Process 
for Distinguishing Serious from Non-Serious Injury of Marine Mammals.'' 
Based on this evaluation, NMFS proposed to issue a permit under MMPA 
section 101(a)(5)(E) to vessels registered in the Category II WA/OR/CA 
sablefish pot fishery, as classified on the final 2021 MMPA LOF, to 
incidentally kill or seriously injure the CA/OR/WA stock of humpback 
whale (86 FR 58641; October 22, 2021).
    NMFS will regularly evaluate other commercial fisheries for 
purposes of making a negligible impact determination (NID) and issuing 
MMPA section 101(a)(5)(E) authorizations with the annual LOF as new 
information becomes available. More information about the WA/OR/CA 
sablefish pot fishery is available in the 2021 MMPA LOF (86 FR 3028; 
January 14, 2021) and

[[Page 69628]]

on the internet at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables.
    We reviewed the best available scientific information to determine 
if the WA/OR/CA sablefish pot fishery met the three requirements of 
MMPA section 101(a)(5)(E) for issuing a permit for the incidental 
taking of ESA-listed marine mammals. This information is included in 
the 2021 MMPA LOF (86 FR 3028; January 14, 2021), the SAR for CA/OR/WA 
stock of humpback whale (available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports), the humpback whale recovery plan (available at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act), and other relevant 
information, as detailed further in the document describing the 
preliminary and final determinations supporting the permit (available 
at: https://www.regulations.gov/docket/NOAA-NMFS-2021-0092).
    NMFS is in the process of revising humpback whale stock structure 
under the MMPA in light of the 14 Distinct Population Segments (DPSs) 
established under the ESA (81 FR 62259, September 8, 2016), based on 
the recently finalized ``Procedural Directive 02-204-03: Reviewing and 
Designating Stocks and Issuing Stock Assessment Reports under the 
Marine Mammal Protection Act'' (NMFS 2019). The DPSs that occur in 
waters under the jurisdiction of the United States do not align with 
the existing MMPA stocks. Some of the listed DPSs partially coincide 
with the currently defined stocks. Because we cannot manage one portion 
of an MMPA stock as ESA-listed and another portion of a stock as not 
ESA-listed, until such time as the MMPA stock designations are revised 
in light of the ESA DPSs, NMFS continues to use the existing MMPA stock 
structure for MMPA management purposes (e.g., selection of a recovery 
factor, stock status) and treats such stocks as ESA-listed if a 
component of that stock is listed under the ESA and overlaps with the 
analyzed commercial fishery. Therefore, for the purpose of this MMPA 
101(a)(5)(E) authorization, NMFS considered the CA/OR/WA stock of 
humpback whale to be ESA-listed as it overlaps with two ESA-listed DPSs 
(Mexico and Central America).

Basis for Determining Negligible Impact

    Prior to issuing a MMPA 101(a)(5)(E) permit to take ESA-listed 
marine mammals incidental to commercial fishing, NMFS must determine 
that the M/SI incidental to commercial fisheries will have a negligible 
impact on the affected marine mammal species or stocks. NMFS satisfies 
this requirement by making a NID. Although the MMPA does not define 
``negligible impact,'' NMFS has issued regulations providing a 
qualitative definition of ``negligible impact,'' defined in 50 CFR 
216.103 as ``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.''

Criteria for Determining Negligible Impact

    NMFS relies on a quantitative approach for determining negligible 
impact detailed in NMFS Procedural Directive 02-204-02 (directive), 
``Criteria for Determining Negligible Impact under MMPA section 
101(a)(5)(E),'' which became effective on June 17, 2020 (NMFS 2020). 
The procedural directive is available online at: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives. This directive describes NMFS' process for 
determining whether incidental M/SI from commercial fisheries will have 
a negligible impact on ESA-listed marine mammal species/stocks (the 
first requirement necessary for issuing a MMPA section 101(a)(5)(E) 
permit as noted above).
    The directive first describes the derivation of two Negligible 
Impact Thresholds (NIT), which represent levels of removal from a 
marine mammal species or stock. The first, Total Negligible Impact 
Threshold (NITt), represents the total amount of human-
caused M/SI that NMFS considers negligible for a given stock. The 
second, lower threshold, Single NIT (NITs) represents the 
level of M/SI from a single commercial fishery that NMFS considers 
negligible for a stock. NITs was developed in recognition 
that some stocks may experience non-negligible levels of total human-
caused M/SI but one or more individual fisheries may contribute a very 
small portion of that M/SI, and the effect of an individual fishery may 
be considered negligible.
    The directive describes a detailed process for using these NIT 
values to conduct a NID analysis for each fishery classified as a 
Category I or II fishery on the MMPA LOF. The NID process uses a two-
tiered analysis. The Tier 1 analysis first compares the total human-
caused M/SI for a particular stock to NITt. If 
NITt is not exceeded, then all commercial fisheries that 
kill or seriously injure the stock are determined to have a negligible 
impact on the particular stock. If NITt is exceeded, then 
the Tier 2 analysis compares each individual fishery's M/SI for a 
particular stock to NITs. If NITs is not 
exceeded, then the commercial fishery is determined to have a 
negligible impact on that particular stock. For transboundary, 
migratory stocks, because of the uncertainty regarding the M/SI that 
occurs outside of U.S. waters, we assume that total M/SI exceeds 
NITt and proceed directly to the Tier 2 NITs 
analysis. If a commercial fishery has a negligible impact across all 
ESA-listed stocks, then the first of three findings necessary for 
issuing a MMPA 101(a)(5)(E) permit to the commercial fishery has been 
met (i.e., a negligible impact determination). If a commercial fishery 
has a non-negligible impact on any ESA-listed stock, then NMFS cannot 
issue a MMPA 101(a)(5)(E) permit for the fishery to incidentally take 
ESA-listed marine mammals.
    These NID criteria rely on the best available scientific 
information, including estimates of a stock's minimum population size 
and human-caused M/SI levels, as published in the most recent SARs and 
other supporting documents, as appropriate. Using these inputs, the 
quantitative negligible impact thresholds allow for straightforward 
calculations that lead to clear negligible or non-negligible impact 
determinations for each commercial fishery analyzed. In rare cases, 
robust data may be unavailable for a straightforward calculation, and 
the directive provides instructions for completing alternative 
calculations or assessments where appropriate.

Negligible Impact Determination

    NMFS evaluated the impact of the WA/OR/CA sablefish pot fishery 
using the process outlined in the directive, and, based on the best 
available scientific information, made a NID.
    The CA/OR/WA stock of humpback whale is a transboundary stock. As 
noted above, because of the uncertainty regarding M/SI that occurs 
outside of U.S. waters for transboundary stocks, we assumed that total 
M/SI exceeds NITt and proceeded directly to the Tier 2 
NITs analysis. The proposed NID relied on the final 2019 CA/
OR/WA humpback whale SAR. Since the publication of the proposed MMPA 
101(a)(5)(E) permit for the WA/OR/CA sablefish pot fishery, the draft 
2021 SAR for the CA/OR/WA stock of humpback whales was published (86 FR 
58887; October 25, 2021). The M/SI estimates in the draft 2021 CA/OR/WA 
humpback

[[Page 69629]]

whale SAR for the WA/OR/CA sablefish pot fishery remain the same as the 
M/SI estimates in the final 2019 SAR and the draft 2021 SAR was used 
for the final NID analysis (see response to comment #7 below).
    The CA/OR/WA stock of humpback whale has documented incidental M/SI 
with this fishery in the most recent (2021) draft CA/OR/WA humpback 
whale SAR (Carretta et al. 2021). The estimated annual M/SI of humpback 
whales (CA/OR/WA stock) in the WA/OR/CA sablefish pot fishery is 1.9, 
based on observer data. Since this M/SI (1.9) is less than 
NITs (2.48), NMFS determined that the WA/OR/CA sablefish pot 
fishery has a negligible impact on the CA/OR/WA stock of humpback 
whales (see accompanying MMPA 101(a)(5)(E) determination document 
linked above for NIT calculations).
    The draft 2021 SAR includes mean annual total commercial fishery-
related M/SI (>=25.2) for the CA/OR/WA stock of humpback whale. This 
comprises M/SI from all commercial fisheries, including the WA/OR/CA 
sablefish pot fishery, as well as fishery-related M/SI for the stock 
not assigned to a specific commercial fishery. This unattributed 
fishery-related M/SI could be from any number of commercial, 
recreational or tribal fisheries, including the WA/OR/CA sablefish pot 
fishery. Because data are not currently available to assign the 
unattributed fishery-related M/SI to a specific commercial fishery, we 
did not include unattributed mortality in the calculations for the NID 
Tier 2 analysis. In addition, because the CA/OR/WA humpback whale stock 
is considered to be a transboundary stock, NMFS assumed NITt 
is exceeded and conducted the more conservative Tier 2 analysis with 
the lower NITs criterion. NMFS is actively monitoring the 
WA/OR/CA sablefish pot fishery through a fishery observer program. 
Further, most of the information on large whale entanglements on the 
West Coast is reported to and documented by the West Coast Large Whale 
Entanglement Response Program. If additional fishery-related M/SI of 
the CA/OR/WA stock of humpback whale is documented through the observer 
program or West Coast Large Whale Entanglement Response Program that 
indicates additional M/SI of the CA/OR/WA stock of humpback whale in 
the WA/OR/CA sablefish pot fishery, then NMFS will re-evaluate the NID 
and the permit.
    The NID analysis is presented in the accompanying MMPA 101(a)(5)(E) 
determination document that provides summaries of the information used 
to evaluate each ESA-listed stock documented on the 2021 MMPA LOF as 
killed or injured incidental to the fishery. The final MMPA 
101(a)(5)(E) determination document is available at: https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-wa-or-ca-sablefish-pot or https://www.regulations.gov/docket/NOAA-NMFS-2021-0092. Based on the criteria 
outlined in the directive, the most recent SAR, and the best available 
scientific information, NMFS has determined that the M/SI incidental to 
the Category II WA/OR/CA sablefish pot fishery will have a negligible 
impact on the associated ESA-listed marine mammal stock (CA/OR/WA stock 
of humpback whale). Accordingly, this MMPA 101(a)(5)(E) requirement is 
satisfied for the commercial fishery.

Recovery Plan

    The humpback whale recovery plan has been completed (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act). Accordingly, the 
requirement to have a recovery plan in place or being developed is 
satisfied.

Take Reduction Plan

    Subject to available funding, MMPA section 118 requires the 
development and implementation of a Take Reduction Plan (TRP) for each 
strategic stock that interacts with a Category I or II fishery. The 
stock considered for this permit is designated as a strategic stock 
under the MMPA because the stock, or a component of the stock, is 
listed as threatened or endangered under the ESA (MMPA section 
3(19)(C)).
    The short- and long-term goals of a TRP are to reduce M/SI of 
marine mammals incidental to commercial fishing to levels below the 
Potential Biological Removal (PBR) level for stocks and to an 
insignificant threshold, defined by NMFS as 10 percent of PBR, 
respectively. 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 
when funding is insufficient. 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 Take 
Reduction Teams (TRT) and developing TRPs. Information about NMFS' 
marine mammal TRTs and TRPs may be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.
    Based on NMFS' priorities, implementation of a TRP for the WA/OR/CA 
sablefish pot fishery is currently deferred under MMPA section 118 as 
other stocks/fisheries are a higher priority for any available funding. 
Accordingly, the requirement under MMPA section 118 to have TRPs in 
place or in development is satisfied (see determination supporting the 
permit available on the internet at https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-wa-or-ca-sablefish-pot or https://www.regulations.gov/docket/NOAA-NMFS-2021-0092).

Monitoring Program

    Under MMPA section 118(d), NMFS is to establish a program for 
monitoring incidental M/SI of marine mammals from commercial fishing 
operations. The WA/OR/CA sablefish pot fishery is the subject of a NMFS 
fishery observer program. Accordingly, the requirement under MMPA 
section 118 to have a monitoring program in place 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. NMFS has integrated the MMPA 
registration process, implemented through the Marine Mammal 
Authorization Program, with existing state and Federal fishery license, 
registration, or permit systems for Category I and II fisheries on the 
LOF. Therefore, the requirement for vessel registration is satisfied.

Conclusions for Permit

    Based on the above evaluation for the WA/OR/CA sablefish pot 
fishery as it relates to the three requirements of MMPA 101(a)(5)(E), 
we are issuing a MMPA 101(a)(5)(E) permit to the WA/OR/CA sablefish pot 
fishery to authorize the incidental take of ESA-listed species or 
stocks during commercial fishing operations. If, during the 3-year 
authorization, there is a significant change in the information or 
conditions used to support the determinations, NMFS will re-evaluate 
whether to amend or modify the authorization, after notice and 
opportunity for public comment.

[[Page 69630]]

ESA Section 7 and National Environmental Policy Act Requirements

    ESA section 7(a)(2) requires Federal agencies to ensure that 
actions they authorize, fund, or carry out do not jeopardize the 
existence of any species listed under the ESA, or destroy or adversely 
modify designated critical habitat of any ESA-listed species. The 
effects of the WA/OR/CA sablefish pot fishery on ESA-listed marine 
mammals were analyzed in an October 2020 ESA section 7 Biological 
Opinion.
    Under section 7 of the ESA, Biological Opinions analyze the effects 
of the proposed action on ESA-listed species and their critical habitat 
and, where appropriate, exempt anticipated future take of ESA-listed 
species as specified in the incidental take statement. Under MMPA 
section 101(a)(5)(E), NMFS analyzes previously documented M/SI 
incidental to commercial fisheries through the negligible impact 
determination process, and when the necessary findings can be made, 
issues a MMPA section 101(a)(5)(E) permit that allows for an 
unspecified amount of incidental taking of specific ESA-listed marine 
mammal stocks while engaging in commercial fishing operations. Thus, 
the applicable standards and resulting analyses under the MMPA and ESA 
differ, and as such, may not always align.
    The National Environmental Policy Act (NEPA) requires Federal 
agencies to evaluate the impacts of alternatives for their actions on 
the human environment. Because this permit would not modify any fishery 
operation and the effects of the fishery operations have been evaluated 
in accordance with NEPA, no additional NEPA analysis beyond that 
conducted for the associated Fishery Management Plans is required for 
the permit. Issuing the permit would have no additional impact on the 
human environment or effects on threatened or endangered species beyond 
those analyzed in these documents.

Comments and Responses

    On October 22, 2021, NMFS published a notice and request for 
comments in the Federal Register for the proposed issuance of permit 
under MMPA section 101(a)(5)(E) to vessels registered in the Category 
II WA/OR/CA sablefish pot fishery (86 FR 58641). The public comment 
period closed on November 8, 2021. NMFS received seven comment letters 
on the proposed issuance of the permit and underlying preliminary 
negligible impact determination. The Center for Biological Diversity 
(CBD) and a joint letter from Whale and Dolphin Conservation and 
Natural Resources Defense Council (WDC/NRDC) oppose issuing the permit 
while Langford Walton & Associates, Sablefish and Halibut Pot 
Association, and a member of the public support issuing the permit. In 
addition, the Fishing Vessels Owner's Association supports issuing the 
permit and commented on several ways the ESA section 7 Biological 
Opinion supported the determinations in the proposed MMPA 101(a)(5)(E) 
permit. NMFS also received a joint letter from Whale and Dolphin 
Conservation, Defenders of Wildlife and Natural Resources Defense 
Council (WDC et al.) requesting NMFS extend the public comment period 
for the proposed permit. Only responses to substantive comments 
pertaining to the proposed permit and preliminary determination under 
MMPA section 101(a)(5)(E) are addressed below.
    Comment 1: WDC et al. requested NMFS extend the comment period by 
15-days for the proposed issuance of a MMPA 101(a)(5)(E) permit to 
authorize the incidental take of the CA/OR/WA stock of humpback whales 
in the WA/OR/CA sablefish pot fishery.
    Response: NMFS did not grant an extension to the comment period, as 
the information presented in the proposed determination was not new but 
rather is based on the M/SI data from the most recent final humpback 
whale stock assessment report, published in 2020. On June 17, 2020, 
NMFS finalized Procedure 02-204-02 (Criteria for Determining Negligible 
Impact under MMPA section 101(a)(5)(E)). The procedural directive 
describes NMFS' process for determining whether incidental M/SI from 
commercial fisheries will have a negligible impact on ESA-listed marine 
mammal species/stocks. The criteria and process from that procedural 
directive, including the calculation for developing a negligible impact 
threshold, was used in order to determine that the WA/OR/CA sablefish 
pot fishery has a negligible impact on the CA/OR/WA stock of humpback 
whales. The NID determination and proposed MMPA 101(a)(5)(E) permit was 
based on the best available science on the stock's minimum population 
estimate, recovery factor, and the most recent estimates of M/SI in the 
WA/OR/CA sablefish pot fishery.
    Comment 2: CBD incorporates their previous comments submitted on 
both the NMFS' draft ``Criteria for Determining Negligible Impact under 
MMPA Section 101(a)(5)(E)'' and the proposed MMPA 101(a)(5)(E) 
authorizations published on October 5, 2020 (85 FR 62709).
    Response: CBD's comments on the draft ``Criteria for Determining 
Negligible Impact under MMPA Section 101(a)(5)(E)'' were previously 
addressed by NMFS and are available at: https://www.fisheries.noaa.gov/action/criteria-determining-negligible-impact-under-mmpa-section-101a5e. Comments on the proposed MMPA 101(a)(5)(E) authorizations 
published on October 5, 2020 (85 FR 62709) were addressed in the 
Federal Register notice for the final MMPA 101(a)(5)(E) authorizations 
(86 FR 24384; May 6, 2021).
    Comment 3: CBD asserts that because NMFS has not revised the CA/OR/
WA humpback whale stock structure following the designation of 14 DPS 
under the ESA the assumptions of the negligible impact thresholds do 
not hold true. CBD raises two issues with applying NITt and 
NITs to the CA/OR/WA stock of humpback whale: (1) The CA//
OR/WA stock is not ESA-listed, and (2) the stock does not conform to 
the assumptions of PBR. CBD states that NMFS cannot assume that M/SI 
levels are below NITt and NITs for the WA/OR/CA 
stock will not prevent recovery of the ESA-listed DPSs, especially the 
Central America DPS. They further note that the CA/OR/WA stock of 
humpback whale abundance estimate is based on mark-recapture models for 
closed populations, ignoring the designation of the ESA DPSs. CBD 
points to NMFS' ``Criteria for Determining Negligible Impact under MMPA 
Section 101(a)(5)(E) guidance'' and recommends a NID analysis be 
conducted for an ESA-listed stock that does not conform to the 
underlying assumptions of PBR and consider if there is an alternate 
approach to determining negligible impact. They request NMFS use an 
alternate approach, revise the draft NID, and make it available for 
public comment.
    Response: Humpback whales were listed globally as endangered under 
the ESA in 1970 (35 FR 18319). On September 8, 2016, NMFS published a 
final rule dividing the globally listed endangered humpback whale into 
14 DPSs and categorizing four DPSs as endangered and one as threatened 
(81 FR 62259). NMFS is in the process of revising humpback whale stock 
structure under the MMPA in light of the 2016 final rule on humpback 
whale DPSs as established under the ESA. In doing so, NMFS is following 
the process laid out in ``Procedural Directive 02-204-03: Reviewing and 
Designating Stocks and Issuing Stock Assessment Reports under the 
Marine Mammal Protection Act'' (NMFS 2019). As noted by the commenters, 
the CA/OR/WA stock of humpback whales does not

[[Page 69631]]

align with the DPSs established under the ESA and comprises animals 
from the endangered Central American DPS, the threatened Mexico DPS, 
and the unlisted Hawaii DPS.
    Because we cannot manage one portion of an MMPA stock as ESA-listed 
and another portion of a stock as not ESA-listed, until humpback whale 
stock structure has been revised, NMFS continues to use the existing 
MMPA stock structure for MMPA management purposes, including NIDs and 
101(a)(5)(E) authorizations. Therefore, for purposes of evaluating the 
impact of the WA/OR/CA sablefish pot fishery under the MMPA, NMFS used 
the current MMPA designation of the CA/OR/WA stock of humpback whales. 
In the case of the CA/OR/WA stock of humpback whales, for the purposes 
of this NID analysis, NMFS considers the entire stock to be endangered 
under the ESA and depleted under the MMPA. In addition, because the CA/
OR/WA humpback whale stock is considered to be transboundary, NMFS 
assumed NITt is exceeded and conducted the more conservative 
Tier 2 analysis with the lower NITs criterion.
    Given this approach and ongoing efforts to revise humpback whale 
stock structure in the Pacific, NMFS has proceeded with a final NID for 
the WA/OR/CA sablefish pot gear fishery with respect to the CA/OR/WA 
stock of humpback whales and is issuing a 101(a)(5)(E) permit for this 
fishery. Nevertheless, if, during the 3-year authorization, there is a 
significant change in the information or conditions used to support any 
of these determinations, including a change in MMPA stock structure and 
associated estimates of abundance and M/SI incidental to commercial 
fisheries, NMFS will re-evaluate the NID.
    Comment 4: Both CBD and WDC/NRDC note that the humpback whale 
recovery plan included in the proposed permit is for the world-wide 
population that was finalized in 1991. They state that NMFS identified 
14 DPSs of humpback whales in 2016, and updated recovery plans have not 
been developed for the 14 DPSs. Therefore, the 1991 humpback whale 
recovery plan does not meet the requirement of MMPA section 
101(a)(5)(E).
    Response: Given that the 1991 NMFS Recovery Plan for humpback 
whales was written for the taxonomic species, it is still applicable to 
humpback whale DPSs within the species and still serves as a guide for 
recovery actions for the currently listed DPSs that occur in U.S. 
waters. As noted in the final rule designating humpback whale critical 
habitat (86 FR 21082, April 21, 2021), some of the objectives of the 
1991 Recovery Plan are still relevant today for the Mexico and Central 
America, and Western North Pacific DPSs. Furthermore, NMFS is working 
to develop updated humpback DPS recovery plans as resources allow. 
However, the 1991 Recovery Plan satisfies the recovery plan need for 
the purposes of MMPA 101(a)(5)(E), while new recovery plans are 
developed.
    Comment 5: CBD states that NMFS has not established a program to 
monitor incidental marine mammal M/SI in the WA/OR/CA sablefish pot 
fishery. They note that the observer program that observes a portion of 
this fishery was not established to monitor marine mammal M/SI but to 
monitor groundfish catch composition. Therefore, the monitoring program 
does not meet the requirements of MMPA section 118(d).
    Response: The observer program in the sablefish pot fishery 
collects data on all target and non-target species, including the 
incidental M/SI of marine mammals. Data from the observer program is 
used by NMFS scientists to generate statistically valid estimates of 
entanglements and mortality/serious injury that are represented in the 
most recent SAR for the CA/OR/WA stock of humpback whales. As such, it 
satisfies the requirement in MMPA section 101(a)(5)(E)(i)(III). Given 
that estimates of entanglements produced from observer data are used in 
the NID analysis, it is incorrect to state the NID analysis relies only 
upon confirmed entanglement reports.
    Comment 6: CBD states that NMFS is not developing and has not 
developed a TRP for humpback whales in the WA/OR/CA sablefish pot 
fishery, noting NMFS' response that developing a TRP for the WA/OR/CA 
sablefish pot trap fishery and other similar Category II fisheries has 
been deferred under MMPA section 118 as other stocks/fisheries are a 
higher priority for any available funding for establishing new TRPs. 
They acknowledge that NMFS updated the list of priorities for 
establishing TRTs in September 2021, and the CA/WA/OR stock of humpback 
whale remains a low priority for establishing a TRT. CBD disagrees with 
NMFS that the NMFS priorities for establishing TRTS meets the MMPA 
section 101(a)(5)(E) requirement and asserts that MMPA section 
101(a)(5)(E) requires a TRP be in place or in development prior to 
authorizing incidental take of these ESA-listed marine mammals.
    Response: As we have noted previously (86 FR 58641; October 22, 
2021), MMPA section 118(f)(3) contains specific priorities for 
developing TRPs if insufficient funding is available to further develop 
and implement TRPs for all applicable stocks and fisheries. NMFS has 
insufficient funding available to simultaneously develop and implement 
TRPs for all strategic stocks that interact with Category I or Category 
II fisheries. Thus, NMFS prioritizes which stocks and fisheries to 
address under a TRP. MMPA section 118(f) provides that if there is 
insufficient funding available to develop and implement a take 
reduction plan for stocks that interact with Category I and II 
fisheries, the Secretary shall give highest priority to the development 
of TRPs for species or stocks whose level of incidental mortality and 
serious injury exceeds PBR, that have a small population size, and 
those that are declining most rapidly. As noted in the Federal Register 
notice announcing NMFS's proposed intent to issue a 101(a)(5)(e) permit 
for the WA/OR/CA sablefish pot fishery, the CA/OR/WA stock of humpback 
whale authorized to be incidentally taken under this permit is 
currently a lower priority for developing a TRP because of the low 
levels of M/SI incidental to commercial fishing compared to other 
marine mammal stocks and commercial fisheries.
    Comment 7: WDC/NRDC comments that the proposed permit is based on 
the 2019 CA/OR/WA humpback whale SAR and the 2019 SAR does not include 
up-to-date data on confirmed entanglements in the WA/OR/CA sablefish 
pot fishery reported in Carretta et al. 2021a. They also state that 
NMFS did not include confirmed unattributed humpback whale 
entanglements in the NID analysis and, by doing so, NMFS has 
underestimated humpback whale M/SI in the WA/OR/CA sablefish pot 
fishery.
    Response: Since the publication of the proposed MMPA 101(a)(5)(E) 
permit for the WA/OR/CA sablefish pot fishery, the draft 2021 SAR for 
the CA/OR/WA stock of humpback whales published and is available for 
public comment (86 FR 58887; October 25, 2021). The M/SI estimates in 
the draft 2021 CA/OR/WA humpback whale SAR for the WA/OR/CA sablefish 
pot fishery remain the same as the M/SI estimates in the final 2019 
SAR. The 2014 humpback whale mortality and the 2016 humpback whale 
serious injuries in the WA/OR/CA sablefish pot fishery reported in 
Carretta et al. 2021a are included in the M/SI estimates in the 2019 
CA/OR/WA humpback whale SAR that was used in the analysis for the 
proposed permit. Carretta et al. 2021a also includes a non-serious 
injury of a humpback whale in

[[Page 69632]]

the WA/OR/CA sablefish pot fishery that occurred in 2017. As noted in 
Carretta et al. 2021a, this non-serious injury is not counted against 
PBR and is not included in the M/SI estimates for the fishery. The 
accompanying MMPA 101(a)(5)(E) determination document has been updated 
to reflect the draft 2021 CA/OR/WA humpback whale SAR.
    As noted above, the CA/OR/WA humpback whale SAR also includes 
unattributed fishery-related M/SI for the stock, which is not assigned 
to a specific commercial fishery. This unattributed fishery-related M/
SI could be from any number of commercial, recreational or tribal 
fisheries, including the WA/OR/CA sablefish pot fishery. Because data 
are not currently available to assign the unattributed fishery-related 
M/SI to a specific commercial fishery, we did not include it in the 
calculations for the NID Tier 2 analysis. In addition, because the CA/
OR/WA humpback whale stock is considered to be transboundary stock, 
NMFS assumed NITt is exceeded and conducted the more 
conservative Tier 2 analysis with the lower NITs criterion.
    Comment 8: WDC/NRDC notes that the proposed permit uses a different 
abundance estimate for the CA/OR/WA stock of humpback whale than the 
abundance estimate in the final 2019 SAR. They state that NMFS has 
identified the Central America DPS as a demographically independent 
population (DIP) under the MMPA, and PBR should be calculated for the 
Central America DIP separately.
    Response: See response to Comment #3 and #7 above. The abundance 
estimates for the CA/OR/WA stock of humpback whales used in the 
analysis for the proposed permit are consistent with the final 2019 SAR 
and the recent 2021 draft SAR. As noted in the response to comment #3, 
NMFS is in the process of revising humpback whale stock structure 
following the process laid out in NMFS (2019). This process includes 
evaluating the lines of evidence to support the delineation of DIPs, 
including whether such evidence supports the delineation of the Central 
America DPS as a DIP. Martien et al. (2019) does not serve as the DIP 
delineation document for the Central America DPS. In the analysis 
supporting issuance of this permit and the NID, NMFS relied on the 
existing MMPA designation of the CA/OR/WA stock of humpback whales. 
Nevertheless, if, during the 3-year authorization, there is a 
significant change in the information or conditions used to support any 
of these determinations, including a change in MMPA stock structure, 
NMFS will re-evaluate the permit.
    Comment 9: WDC/NRDC reiterate their previous comments submitted on 
the NMFS' draft ``Criteria for Determining Negligible Impact under MMPA 
Section 101(a)(5)(E).'' They restate that the approach to negligible 
impact determinations undermines the protections for marine mammals 
protected as threatened or endangered under the ESA, and assessing the 
impacts of a single fishery when total M/SI exceeds PBR is an 
inadequate standard. WDC/NRDC requests NMFS consider total human-caused 
M/SI for the humpback whale DPSs, and if all fisheries-related M/SI 
exceeds PBR for the Central America or Mexico DPS, that NMFS delay 
issuing the permit until mitigation measures are implemented.
    Response: As previously stated (86 FR 24384; May 6, 2021), NMFS 
received several comments on the draft ``Criteria for Determining 
Negligible Impact under MMPA Section 101(a)(5)(E)'' stating the 
directive was either overly precautionary or not precautionary enough. 
These comments were previously addressed in the response to comments 
(see Comment #4) on the draft ``Criteria for Determining Negligible 
Impact under MMPA Section 101(a)(5)(E).'' The full response to comments 
on the procedural directive is available at: https://www.fisheries.noaa.gov/action/criteria-determining-negligible-impact-under-mmpa-section-101a5e.
    As described in the ``Criteria for Determining Negligible Impact 
under MMPA Section 101(a)(5)(E),'' due to the uncertainty regarding the 
M/SI that occurs outside of U.S. waters, we assume that total M/SI 
exceeds NITt for transboundary, migratory stocks and proceed 
directly to the Tier 2 NITs analysis. The CA/OR/WA stock of 
humpback whale is considered a transboundary stock and using the 
``Criteria for Determining Negligible Impact under MMPA Section 
101(a)(5)(E)'' a Tier 2 NITs analysis was conducted.

References

Carretta, J.W., K.A. Forney, E.M. Olson, D.W. Weller, A.R. Lang, J. 
Baker, M.M. Muto, B. Hanson, A.J. Orr, H. Huber, M.S. Lowry, J. 
Barlow, J.E. Moore, D. Lynch, and R.L. Brownell. 2021. Draft U.S. 
Pacific Marine Mammal Stock Assessments: 2021. NOAA-TM-NMFS-SWFSC-
XXX.
Carretta, J.W., J. Greenman, K. Wilkinson, J. Freed, L. Saez, D. 
Lawson, J. Viezbicke, and J. Jannot. 2021a. Sources of Human-related 
Injury and Mortality for U.S. Pacific West Coast Marine Mammal Stock 
Assessments, 2015-2019. U.S. Department of Commerce, NOAA Technical 
Memorandum NMFS-SWFSC-643.
Martien, K.K., A.R. Lang, B.L. Taylor, P.E. Rosel, SE Simmons, E.M. 
Oleson, P.L. Boveng., and M.B. Hanson. 2019. The DIP Delineation 
Handbook: A Guide to Using Multiple Lines of Evidence to Delineate 
Demographically Independent Populations of Marine Mammals. NOAA 
Technical Memorandum NMFS-SWFSC-622, 135 p. Available at: https://repository.library.noaa.gov/view/noaa/22660.
National Marine Fisheries Service (NMFS). 2020. National Marine 
Fisheries Service Procedure 02-204-02: Criteria for Determining 
Negligible Impact under MMPA Section 101(a)(5)(E). 20 p. Available 
online: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.
National Marine Fisheries Service (NMFS). 2019. National Marine 
Fisheries Service Procedure 02-204-03: Reviewing and designating 
stocks and issuing Stock Assessment Reports under the Marine Mammal 
Protection Act. 9 p. Available online: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.
National Marine Fisheries Service (NMFS). 2016. National Marine 
Fisheries Service Procedure 02-204-01: Guidelines for preparing 
stock assessment reports pursuant to the 1994 amendments to the 
Marine Mammal Protection Act. 23 p. Available online: https://www.fisheries.noaa.gov/national/marine-mammal-protection/guidelines-assessing-marine-mammal-stocks.
National Marine Fisheries Service (NMFS). 2014. National Marine 
Fisheries Service Procedure 02-238-01: Process for Distinguishing 
Serious from Non-Serious Injury of Marine Mammals. 42 p. Available 
online: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-policies-guidance-and-regulations

    Dated: December 2, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-26536 Filed 12-7-21; 8:45 am]
BILLING CODE 3510-22-P