Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit, 6140-6144 [2022-02166]

Download as PDF 6140 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Notices Section Member appointments through April 30, 2022. Dated: January 25, 2022. Alexander Peacher, Director for the Office of Latin America & the Caribbean. [FR Doc. 2022–01881 Filed 2–2–22; 8:45 am] BILLING CODE 3510–HE–P reviews of the AD order on certain steel nails from Korea.2 The controlling notice is the original January 19, 2022, notice. The inadvertent duplicate publication of this notice does not constitute redetermination of this proceeding. This notice serves as a notification of, and correction to, this inadvertent duplicate publication. Notification to Interested Parties DEPARTMENT OF COMMERCE This notice is issued and published in accordance with section 751(a) of the Tariff Act of 1930, as amended. International Trade Administration [A–580–874] Certain Steel Nails From the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2019– 2020; Correction Enforcement and Compliance, International Trade Administration, Department of Commerce. ACTION: Notice; correction. AGENCY: The Department of Commerce (Commerce) published notice in the Federal Register of January 20, 2022, in which Commerce announced the final results of the 2019–2020 administrative review of the antidumping duty (AD) order on certain steel nails from the Republic of Korea (Korea). This notice was a duplicate for a notice published on January 19, 2022, in which Commerce announced the final results of the 2019–2020 administrative review of the AD order on certain steel nails from Korea. FOR FURTHER INFORMATION CONTACT: Eva Kim, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–8283. SUPPLEMENTARY INFORMATION: SUMMARY: khammond on DSKJM1Z7X2PROD with NOTICES Correction In the Federal Register of January 20, 2022, the FR Doc 2022–01038 is a duplicate to the notice published on January 19, 2022, FR Doc 2022–00957. Background On January 20, 2022, Commerce published in the Federal Register the final results of the 2019–2020 administrative reviews of the AD order on certain steel nails from Korea.1 This was a duplicate notice from the January 19, 2022, notice published in the Federal Register announcing the final results of the 2019–2020 administrative 1 See Certain Steel Nails From the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2019–2020, 87 FR 3079 (January 20, 2022). VerDate Sep<11>2014 18:08 Feb 02, 2022 Jkt 256001 Dated: January 28, 2022. Lisa W. Wang, Assistant Secretary for Enforcement and Compliance. [FR Doc. 2022–02274 Filed 2–2–22; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XB769] Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; public meeting. AGENCY: The Ecosystem and Ocean Planning (EOP) Committee and Advisory Panel (AP) of the Mid-Atlantic Fishery Management Council (Council) will hold a joint meeting. See SUPPLEMENTARY INFORMATION for agenda details. DATES: The meeting will be held on Thursday, February 24, 2022, from 1 p.m. through 2:30 p.m. ADDRESSES: The meeting will take place over webinar with a telephone-only connection option. Details on how to connect to the webinar by computer and by telephone will be available at: www.mafmc.org. Council address: Mid-Atlantic Fishery Management Council, 800 N State Street, Suite 201, Dover, DE 19901; telephone: (302) 674–2331; website: www.mafmc.org. SUMMARY: FOR FURTHER INFORMATION CONTACT: Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526–5255. 2 See Certain Steel Nails From the Republic of Korea: Final Results of Antidumping Duty Administrative Review: 2019–2020, 87 FR 2763 (January 19, 2022). PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 The purpose of this meeting is for the EOP Committee and AP to provide feedback and input on a research project the Council is collaborating on with a research team from Rutgers University. The project is developing forecast models to predict short-term (1–10 years) climate-induced distribution changes for four economically important Mid and South Atlantic managed species (summer flounder, spiny dogfish, Illex squid, and gray triggerfish). Short-term projections should provide for greater management utility and application since most management considerations and decisions operate at similar timescales. A forecast model has been completed for summer flounder and the research team will present on model development and initial/draft results and outputs. The EOP Committee and AP will provide feedback on the model outputs and their potential utility and offer input on future project direction and next steps. A detailed agenda and background documents will be made available on the Council’s website (www.mafmc.org) prior to the meeting. SUPPLEMENTARY INFORMATION: Special Accommodations The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526–5251, at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 et seq. Dated: January 31, 2022. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2022–02285 Filed 2–2–22; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XB696] Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice. AGENCY: The National Marine Fisheries Service (NMFS) is issuing a permit to authorize the incidental, but not intentional, take of specific SUMMARY: E:\FR\FM\03FEN1.SGM 03FEN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Notices Endangered Species Act (ESA)-listed marine mammal species or stocks under the Marine Mammal Protection Act (MMPA), in the Alaska (AK) Bering Sea, Aleutian Islands (BSAI) Pacific cod pot fishery. DATES: The permit is effective for a three-year period beginning February 3, 2022. 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-impactdetermination-and-mmpa-section101a5e-authorization-ak-bering-seaaleutian or https://www.regulations.gov/ docket/NOAA-NMFS-2021-0123. 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-speciesconservation/recovery-species-underendangered-species-act; 2021 MMPA List of Fisheries (LOF), https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/listfisheries-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-assessmentreports-region, and stock, https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessment-reportsspecies-stock; and Take Reduction Teams and Plans, https://www.fisheries. noaa.gov/national/marine-mammalprotection/marine-mammal-takereduction-plans-and-teams. FOR FURTHER INFORMATION CONTACT: Suzie Teerlink, NMFS Alaska Region, 907–586–7240, Suzie.Teerlink@ noaa.gov; or Jaclyn Taylor, NMFS Office of Protected Resources, 301–427–8402, Jaclyn.Taylor@noaa.gov. 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 (16 U.S.C. 1371(a)(5)(E)). VerDate Sep<11>2014 18:08 Feb 02, 2022 Jkt 256001 NMFS has determined that the AK BSAI Pacific cod 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 (Central North Pacific and Western North Pacific stocks of humpback whale) under the MMPA for a period of three years. Background The MMPA List of Fisheries (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 3 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. We evaluated ESA-listed stocks or species included on the final 2021 MMPA LOF as killed or seriously injured following NMFS’ Procedural Directive 02–238 ‘‘Process for Distinguishing Serious from NonSerious Injury of Marine Mammals.’’ PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 6141 Based on this evaluation, NMFS proposed to issue a permit under MMPA section 101(a)(5)(E) to vessels registered in the Category II AK BSAI Pacific cod pot fishery, as classified on the final 2021 MMPA LOF, to incidentally kill or seriously injure individuals from the Central North Pacific and Western North Pacific stocks of humpback whale (86 FR 71236; December 15, 2021). NMFS will regularly evaluate other commercial fisheries for purposes of making a negligible impact determination (NID) and issuing section 101(a)(5)(E) authorizations with the annual LOF as new information becomes available. More information about the AK BSAI Pacific cod pot fishery is available in the 2021 MMPA LOF (86 FR 3028; January 14, 2021) and on the internet at: https://www.fisheries. noaa.gov/national/marine-mammalprotection/list-fisheries-summary-tables. We reviewed the best available scientific information to determine whether the AK BSAI Pacific cod pot fishery met the three requirements of MMPA section 101(a)(5)(E) for issuing a permit for the incidental taking of ESAlisted marine mammals. This information is included in the 2021 MMPA LOF (86 FR 3028; January 14, 2021), the SARs for these species (available at: https://www.fisheries. noaa.gov/national/marine-mammalprotection/marine-mammal-stockassessment-reports), recovery plans for these species (available at: https:// www.fisheries.noaa.gov/national/ endangered-species-conservation/ recovery-species-under-endangeredspecies-act), and other relevant information, as detailed further in the documents describing the preliminary and final determinations supporting the permit (available at: https:// www.regulations.gov/docket/NOAANMFS-2021-0123). NMFS is in the process of revising humpback whale stock structure under the MMPA in response to the 14 Distinct Population Segments (DPSs) established under the ESA (81 FR 62259, September 8, 2016), and based on the ‘‘Procedural Directive 02–204– 03: Reviewing and Designating Stocks and Issuing Stock Assessment Reports under the Marine Mammal Protection Act’’ (NMFS 2019). The humpback whale 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 E:\FR\FM\03FEN1.SGM 03FEN1 6142 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Notices MMPA stock designations are revised, 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 Act and overlaps with the analyzed commercial fishery. Therefore, for the purpose of this MMPA 101(a)(5)(E) authorization, we considered the Central North Pacific and Western North Pacific stocks of humpback whales to be ESA-listed as they overlap with the two ESA-listed DPSs: The threatened Mexico DPS and the endangered Western North Pacific DPS. khammond on DSKJM1Z7X2PROD with NOTICES 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 if 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/protectedresources-policy-directives. The 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 VerDate Sep<11>2014 18:08 Feb 02, 2022 Jkt 256001 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 humancaused 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 3 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 humancaused 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. PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 Negligible Impact Determination NMFS evaluated the impact of the AK BSAI Pacific cod pot fishery using the process outlined in the directive, and, based on the best available scientific information, made a NID. The Central North Pacific and Western North Pacific stocks of humpback whales are transboundary stocks. 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 most recent (2020) final Central North Pacific and Western North Pacific humpback whale SARs documented M/SI of Central North Pacific and Western North Pacific stocks of humpback whale incidental to this fishery (Muto et al. 2021). The estimated annual M/SI of Central North Pacific humpback whales in the AK BSAI Pacific cod pot fishery is 0.2, based on Alaska Marine Mammal Health and Stranding Response Program data. Since this M/SI (0.2) is less than NITs (3.59), NMFS determined that the AK BSAI Pacific cod pot fishery has a negligible impact on the Central North Pacific stock of humpback whales (see accompanying MMPA 101(a)(5)(E) determination document linked above for NIT calculations). The estimated annual M/SI of Western North Pacific humpback whales in the AK BSAI Pacific cod pot fishery is 0.2, based on Alaska Marine Mammal Health and Stranding Response Program data. Since this M/SI (0.2) is less than NITs (0.39), NMFS determined that the AK BSAI Pacific cod pot fishery has a negligible impact on the Western North Pacific stock of humpback whales (see accompanying MMPA 101(a)(5)(E) determination document linked above for NIT calculations). The estimated annual M/SI noted above for the Central North Pacific and Western North Pacific stocks of humpback whales is based on a single M/SI event that occurred in an area where the two stocks overlap. This M/ SI was assigned to both the Central North Pacific and Western North Pacific stocks (Muto et al. 2021) and was therefore included in the NID analysis for each of these stocks. This is conservative as it double counts this single M/SI event and assumes it applies to each stock individually. Furthermore, this also conservatively assumes that this M/SI necessarily involved a humpback that is listed under the ESA, despite a large portion (approximately 91 percent) of the E:\FR\FM\03FEN1.SGM 03FEN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Notices humpback whales in the Aleutian Islands, Bering Sea, Chukchi Sea, and Beaufort Sea area estimated to be part of the Hawaii DPS, which is not listed under the ESA (Wade 2021, NMFS 2021). However, as discussed above, the humpback whale MMPA stock designations are currently being revised in response to the ESA-listed DPSs. In revising humpback stocks, NMFS is evaluating the available data and methods to apportion the M/SI to the individual stocks in areas where they overlap. Once the revised stock designations are finalized and the M/SI for those stocks is analyzed, the MMPA 101(a)(5)(E) authorization will be modified as appropriate. The 2020 SAR includes the mean annual total commercial fishery-related M/SI (9.8) for the Central North Pacific stock of humpback whale and (0.9) for the Western North Pacific stock of humpback whale. This comprises M/SI from all commercial fisheries, including the AK BSAI Pacific cod pot fishery, as well as fishery-related M/SI for the stock not assigned to a specific commercial fishery. The SARs for both stocks also include unattributed fishery-related M/ SI (7.9 for Central North Pacific, 0.4 for Western North Pacific), which is not assigned to a specific commercial fishery. This unattributed fisheryrelated M/SI could be from any number of commercial or recreational fisheries, including the AK BSAI Pacific cod pot fishery. In accordance with NMFS Procedural Directive 02–204–02, 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 (NMFS 2020). In addition, because the Central North Pacific and Western North Pacific stocks of humpback whales are considered to be transboundary stocks, NMFS assumed NITt is exceeded and conducted the more conservative Tier 2 analysis with the lower NITs criterion. NMFS is actively monitoring the AK BSAI Pacific cod pot fishery through the North Pacific Fisheries Observer Program. Further, most of the information on large whale entanglements in Alaska is reported to and documented by the Alaska Large Whale Entanglement Response Program. If additional fishery-related M/SI of the Central North Pacific or Western North Pacific stock of humpback whale is documented through the observer program or the Alaska Marine Mammal Health and Stranding Response Program that indicates additional M/SI of the Central North Pacific or Western North Pacific stock of humpback whale in the VerDate Sep<11>2014 18:08 Feb 02, 2022 Jkt 256001 AK BSAI Pacific cod pot fishery, then NMFS will re-evaluate the NID and the permit. The NID analysis is presented in an accompanying MMPA section 101(a)(5)(E) determination document that provides summaries of the information used to evaluate each ESAlisted stocks documented on the 2021 MMPA LOF as killed or injured incidental to the fishery (available at: https://www.fisheries.noaa.gov/action/ mmpa-list-fisheries-2021). The final MMPA 101(a)(5)(E) determination document is available at: https:// www.fisheries.noaa.gov/action/ negligible-impact-determination-andmmpa-section-101a5e-authorization-akbering-sea-aleutian or https:// www.regulations.gov/docket/NOAANMFS-2021-0123. 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 AK BSAI Pacific cod pot fishery will have a negligible impact on the associated ESA-listed marine mammal stocks (Central North Pacific and Western North Pacific stocks of humpback whale). Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied for the commercial fishery (see MMPA 101(a)(5)(E) determination document available at: https:// www.regulations.gov/docket/NOAANMFS-2021-0123). Recovery Plan The humpback whale recovery plan has been completed (see https:// www.fisheries.noaa.gov/national/ endangered-species-conservation/ recovery-species-under-endangeredspecies-act). Accordingly, the requirement to have recovery plans 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 stocks considered for this permit are designated as a strategic stock under the MMPA because the stocks, or a component of the stocks, are 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 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 6143 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-plansand-teams. Based on NMFS’ priorities, implementation of a TRP for the AK BSAI Pacific cod 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.regulations.gov/docket/NOAANMFS-2021-0123). 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 AK BSAI Pacific cod pot fishery is monitored under the partial coverage category through the North Pacific Fisheries 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 Proposed Permit Based on the above evaluation for the AK BSAI Pacific cod pot fishery as it relates to the three requirements of MMPA section 101(a)(5)(E), we are issuing a MMPA 101(a)(5)(E) permit to E:\FR\FM\03FEN1.SGM 03FEN1 6144 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Notices the AK BSAI Pacific cod pot fishery to authorize the incidental take of ESAlisted species or stocks during commercial fishing operations. If, during the three-year authorization, there is a significant change in the information or conditions used to support any of these determinations, NMFS will re-evaluate whether to amend or modify the authorization, after notice and opportunity for public comment. khammond on DSKJM1Z7X2PROD with NOTICES ESA Section 7 and National Environmental Policy Act Requirements References 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 AK BSAI Pacific cod pot fishery on ESA-listed marine mammals, were analyzed in the ESA section 7 Biological Opinion for the BSAI Groundfish Fishery Management Plan. 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 the 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 Plan 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. VerDate Sep<11>2014 18:08 Feb 02, 2022 Public Comments On December 15, 2021, NMFS published a notice and request for comments in the Federal Register for the proposed issuance of a permit under MMPA section 101(a)(5)(E) to vessels registered in the Category II AK BSAI Pacific cod pot fishery (86 FR 71236). The public comment period closed on December 30, 2021. NMFS received one non-substantive comment letter opposing the proposed issuance of the permit and underlying preliminary negligible impact determination. Jkt 256001 Muto, M.M., V.T. Helker, B.J. Delean, N.C. Young, J.C. Freed, R.P. Angliss, N.A. Friday, P.L. Boveng, J.M. Breiwick, B.M. Brost, M.F. Cameron, P.J. Clapham, J.L. Crance, S.P. Dahle, M.E. Dahlheim, B.S. Fadely, M.C. Ferguson, L.W. Fritz, K.T. Goetz, R.C. Hobbs, Y.V. Ivashchenko, A.S. Kennedy, J.M. London, S.A. Mizroch, R.R. Ream, E.L. Richmond, K.E. W. Shelden, K.L. Sweeney, R.G. Towell, P.R. Wade, J.M. Waite, and A.N. Zerbini. 2021. Alaska marine mammal stock assessments, 2020. U.S. Department of Commerce, NOAA Tech. Memo. NMFS– AFSC–421. 398 p. National Marine Fisheries Service (NMFS). 2021. Occurrence of Endangered Species Act (ESA) Listed Humpback Whales off Alaska. 4 p. Available online: https:// media.fisheries.noaa.gov/2021-12/ Guidance-Humpbacks-Alaska.pdf. 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/protectedresources-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-mammalprotection/guidelines-assessing-marinemammal-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-mammalprotection/marine-mammal-protectionact-policies-guidance-and-regulations Wade, P. R. 2021. Estimates of abundance PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 and migratory destination for North Pacific humpback whales in both summer feeding areas and winter mating and calving areas. International Whaling Commission. SC/68c/IA/03. 32 p. https://archive.iwc.int/. Dated: January 28, 2022. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2022–02166 Filed 2–2–22; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XB776] Pacific Fishery Management Council; Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meeting. AGENCY: The Pacific Fishery Management Council’s (Pacific Council) Ad Hoc Groundfish Electronic Monitoring Policy Advisory Committee and Technical Advisory Committee (Committees) will hold two webinars, which are open to the public. DATES: The online meetings will be held February 23 and March 30, 2022, from 9 a.m. to 12 p.m., Pacific Time each day or until work for the day is completed. ADDRESSES: These meetings will be held online. Specific meeting information, including directions on how to join the meetings and system requirements will be provided in the meeting announcements on the Pacific Council’s website (see www.pcouncil.org). You may send an email to Mr. Kris Kleinschmidt (kris.kleinschmidt@ noaa.gov) or contact him at (503) 820– 2412 for technical assistance. Council address: Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220–1384. FOR FURTHER INFORMATION CONTACT: Brett Wiedoff, Staff Officer, Pacific Council; telephone: (503) 820–2424. SUPPLEMENTARY INFORMATION: The purpose of these webinars is to discuss continued development of the West Coast Electronic Monitoring Program (EM Program). The Committees will begin scoping EM Program issues and conduct a workload planning process to identify future meetings and topics at the February 23rd webinar. The March 30th webinar will be a work session to SUMMARY: E:\FR\FM\03FEN1.SGM 03FEN1

Agencies

[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Notices]
[Pages 6140-6144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02166]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB696]


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 to authorize the incidental, but not intentional, take of 
specific

[[Page 6141]]

Endangered Species Act (ESA)-listed marine mammal species or stocks 
under the Marine Mammal Protection Act (MMPA), in the Alaska (AK) 
Bering Sea, Aleutian Islands (BSAI) Pacific cod pot fishery.

DATES: The permit is effective for a three-year period beginning 
February 3, 2022.

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-ak-bering-sea-aleutian or https://www.regulations.gov/docket/NOAA-NMFS-2021-0123. 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: Suzie Teerlink, NMFS Alaska Region, 
907-586-7240, [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 (16 U.S.C. 
1371(a)(5)(E)). NMFS has determined that the AK BSAI Pacific cod 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 (Central North Pacific and Western North Pacific 
stocks of humpback whale) under the MMPA for a period of three years.

Background

    The MMPA List of Fisheries (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 3 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. We evaluated 
ESA-listed stocks or species included on the final 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 AK BSAI Pacific cod pot fishery, as classified on the final 2021 
MMPA LOF, to incidentally kill or seriously injure individuals from the 
Central North Pacific and Western North Pacific stocks of humpback 
whale (86 FR 71236; December 15, 2021).
    NMFS will regularly evaluate other commercial fisheries for 
purposes of making a negligible impact determination (NID) and issuing 
section 101(a)(5)(E) authorizations with the annual LOF as new 
information becomes available. More information about the AK BSAI 
Pacific cod pot fishery is available in the 2021 MMPA LOF (86 FR 3028; 
January 14, 2021) and 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 
whether the AK BSAI Pacific cod 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 SARs for these 
species (available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports), recovery 
plans for these species (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 documents describing the preliminary and final 
determinations supporting the permit (available at: https://www.regulations.gov/docket/NOAA-NMFS-2021-0123).
    NMFS is in the process of revising humpback whale stock structure 
under the MMPA in response to the 14 Distinct Population Segments 
(DPSs) established under the ESA (81 FR 62259, September 8, 2016), and 
based on the ``Procedural Directive 02-204-03: Reviewing and 
Designating Stocks and Issuing Stock Assessment Reports under the 
Marine Mammal Protection Act'' (NMFS 2019). The humpback whale 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

[[Page 6142]]

MMPA stock designations are revised, 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 Act and overlaps with the 
analyzed commercial fishery. Therefore, for the purpose of this MMPA 
101(a)(5)(E) authorization, we considered the Central North Pacific and 
Western North Pacific stocks of humpback whales to be ESA-listed as 
they overlap with the two ESA-listed DPSs: The threatened Mexico DPS 
and the endangered Western North Pacific DPS.

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 if 
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. The 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 3 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 AK BSAI Pacific cod pot fishery 
using the process outlined in the directive, and, based on the best 
available scientific information, made a NID.
    The Central North Pacific and Western North Pacific stocks of 
humpback whales are transboundary stocks. 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 most recent (2020) final Central North Pacific and 
Western North Pacific humpback whale SARs documented M/SI of Central 
North Pacific and Western North Pacific stocks of humpback whale 
incidental to this fishery (Muto et al. 2021).
    The estimated annual M/SI of Central North Pacific humpback whales 
in the AK BSAI Pacific cod pot fishery is 0.2, based on Alaska Marine 
Mammal Health and Stranding Response Program data. Since this M/SI 
(0.2) is less than NITs (3.59), NMFS determined that the AK 
BSAI Pacific cod pot fishery has a negligible impact on the Central 
North Pacific stock of humpback whales (see accompanying MMPA 
101(a)(5)(E) determination document linked above for NIT calculations).
    The estimated annual M/SI of Western North Pacific humpback whales 
in the AK BSAI Pacific cod pot fishery is 0.2, based on Alaska Marine 
Mammal Health and Stranding Response Program data. Since this M/SI 
(0.2) is less than NITs (0.39), NMFS determined that the AK BSAI 
Pacific cod pot fishery has a negligible impact on the Western North 
Pacific stock of humpback whales (see accompanying MMPA 101(a)(5)(E) 
determination document linked above for NIT calculations).
    The estimated annual M/SI noted above for the Central North Pacific 
and Western North Pacific stocks of humpback whales is based on a 
single M/SI event that occurred in an area where the two stocks 
overlap. This M/SI was assigned to both the Central North Pacific and 
Western North Pacific stocks (Muto et al. 2021) and was therefore 
included in the NID analysis for each of these stocks. This is 
conservative as it double counts this single M/SI event and assumes it 
applies to each stock individually. Furthermore, this also 
conservatively assumes that this M/SI necessarily involved a humpback 
that is listed under the ESA, despite a large portion (approximately 91 
percent) of the

[[Page 6143]]

humpback whales in the Aleutian Islands, Bering Sea, Chukchi Sea, and 
Beaufort Sea area estimated to be part of the Hawaii DPS, which is not 
listed under the ESA (Wade 2021, NMFS 2021). However, as discussed 
above, the humpback whale MMPA stock designations are currently being 
revised in response to the ESA-listed DPSs. In revising humpback 
stocks, NMFS is evaluating the available data and methods to apportion 
the M/SI to the individual stocks in areas where they overlap. Once the 
revised stock designations are finalized and the M/SI for those stocks 
is analyzed, the MMPA 101(a)(5)(E) authorization will be modified as 
appropriate.
    The 2020 SAR includes the mean annual total commercial fishery-
related M/SI (9.8) for the Central North Pacific stock of humpback 
whale and (0.9) for the Western North Pacific stock of humpback whale. 
This comprises M/SI from all commercial fisheries, including the AK 
BSAI Pacific cod pot fishery, as well as fishery-related M/SI for the 
stock not assigned to a specific commercial fishery. The SARs for both 
stocks also include unattributed fishery-related M/SI (7.9 for Central 
North Pacific, 0.4 for Western North Pacific), which is not assigned to 
a specific commercial fishery. This unattributed fishery-related M/SI 
could be from any number of commercial or recreational fisheries, 
including the AK BSAI Pacific cod pot fishery. In accordance with NMFS 
Procedural Directive 02-204-02, 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 (NMFS 2020).
    In addition, because the Central North Pacific and Western North 
Pacific stocks of humpback whales are considered to be transboundary 
stocks, NMFS assumed NITt is exceeded and conducted the more 
conservative Tier 2 analysis with the lower NITs criterion. 
NMFS is actively monitoring the AK BSAI Pacific cod pot fishery through 
the North Pacific Fisheries Observer Program. Further, most of the 
information on large whale entanglements in Alaska is reported to and 
documented by the Alaska Large Whale Entanglement Response Program. If 
additional fishery-related M/SI of the Central North Pacific or Western 
North Pacific stock of humpback whale is documented through the 
observer program or the Alaska Marine Mammal Health and Stranding 
Response Program that indicates additional M/SI of the Central North 
Pacific or Western North Pacific stock of humpback whale in the AK BSAI 
Pacific cod pot fishery, then NMFS will re-evaluate the NID and the 
permit.
    The NID analysis is presented in an accompanying MMPA section 
101(a)(5)(E) determination document that provides summaries of the 
information used to evaluate each ESA-listed stocks documented on the 
2021 MMPA LOF as killed or injured incidental to the fishery (available 
at: https://www.fisheries.noaa.gov/action/mmpa-list-fisheries-2021). 
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-ak-bering-sea-aleutian or https://www.regulations.gov/docket/NOAA-NMFS-2021-0123. 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 AK BSAI Pacific cod pot fishery will have a negligible 
impact on the associated ESA-listed marine mammal stocks (Central North 
Pacific and Western North Pacific stocks of humpback whale). 
Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied for the 
commercial fishery (see MMPA 101(a)(5)(E) determination document 
available at: https://www.regulations.gov/docket/NOAA-NMFS-2021-0123).

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 recovery plans 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 
stocks considered for this permit are designated as a strategic stock 
under the MMPA because the stocks, or a component of the stocks, are 
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 AK BSAI 
Pacific cod 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.regulations.gov/docket/NOAA-NMFS-2021-0123).

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 AK BSAI Pacific cod pot fishery is monitored under the 
partial coverage category through the North Pacific Fisheries 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 Proposed Permit

    Based on the above evaluation for the AK BSAI Pacific cod pot 
fishery as it relates to the three requirements of MMPA section 
101(a)(5)(E), we are issuing a MMPA 101(a)(5)(E) permit to

[[Page 6144]]

the AK BSAI Pacific cod pot fishery to authorize the incidental take of 
ESA-listed species or stocks during commercial fishing operations. If, 
during the three-year authorization, there is a significant change in 
the information or conditions used to support any of these 
determinations, NMFS will re-evaluate whether to amend or modify the 
authorization, after notice and opportunity for public comment.

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 AK BSAI Pacific cod pot fishery on ESA-listed marine 
mammals, were analyzed in the ESA section 7 Biological Opinion for the 
BSAI Groundfish Fishery Management Plan.
    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 the 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 Plan 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.

Public Comments

    On December 15, 2021, NMFS published a notice and request for 
comments in the Federal Register for the proposed issuance of a permit 
under MMPA section 101(a)(5)(E) to vessels registered in the Category 
II AK BSAI Pacific cod pot fishery (86 FR 71236). The public comment 
period closed on December 30, 2021. NMFS received one non-substantive 
comment letter opposing the proposed issuance of the permit and 
underlying preliminary negligible impact determination.

References

Muto, M.M., V.T. Helker, B.J. Delean, N.C. Young, J.C. Freed, R.P. 
Angliss, N.A. Friday, P.L. Boveng, J.M. Breiwick, B.M. Brost, M.F. 
Cameron, P.J. Clapham, J.L. Crance, S.P. Dahle, M.E. Dahlheim, B.S. 
Fadely, M.C. Ferguson, L.W. Fritz, K.T. Goetz, R.C. Hobbs, Y.V. 
Ivashchenko, A.S. Kennedy, J.M. London, S.A. Mizroch, R.R. Ream, 
E.L. Richmond, K.E. W. Shelden, K.L. Sweeney, R.G. Towell, P.R. 
Wade, J.M. Waite, and A.N. Zerbini. 2021. Alaska marine mammal stock 
assessments, 2020. U.S. Department of Commerce, NOAA Tech. Memo. 
NMFS-AFSC-421. 398 p.
National Marine Fisheries Service (NMFS). 2021. Occurrence of 
Endangered Species Act (ESA) Listed Humpback Whales off Alaska. 4 p. 
Available online: https://media.fisheries.noaa.gov/2021-12/Guidance-Humpbacks-Alaska.pdf.
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
Wade, P. R. 2021. Estimates of abundance and migratory destination 
for North Pacific humpback whales in both summer feeding areas and 
winter mating and calving areas. International Whaling Commission. 
SC/68c/IA/03. 32 p. https://archive.iwc.int/.

    Dated: January 28, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-02166 Filed 2-2-22; 8:45 am]
BILLING CODE 3510-22-P