Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permits, 50270-50279 [2024-12938]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 115 (Thursday, June 13, 2024)]
[Notices]
[Pages 50270-50279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12938]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD818]


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

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

ACTION: Notice.

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SUMMARY: The NMFS is issuing permits 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 certain U.S. commercial fisheries.

DATES: These permits are effective for a 3-year period beginning June 
13, 2024.

ADDRESSES: Reference materials for the permits are available on the 
internet at: https://www.fisheries.noaa.gov/action/

[[Page 50271]]

negligible-impact-determinations-and-mmpa-section-101a5e-authorization-
commercial-0 or https://www.regulations.gov/docket/NOAA-NMFS-2024-0003. 
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; 2024 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 (TRT) 
and Plans, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.

FOR FURTHER INFORMATION CONTACT: Elena Duke, NMFS Pacific Islands 
Region, 808-725-5085, [email protected]; 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 pursuant to the 
ESA; and (3) where required under MMPA section 118, a take reduction 
plan (TRP) has been developed or is being developed, a monitoring 
program is established, and vessels participating in the fishery are 
registered. NMFS has determined that certain commercial fisheries meet 
these three requirements and are issuing permits to these fisheries 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. Section 118(c)(2) of the MMPA requires fishing vessels that 
operate in Category I and II fisheries to 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 118(a)(2) of the MMPA, 16 U.S.C. 1387(a)(2), 
also requires an additional authorization at section 101(a)(5) of the 
MMPA, 16 U.S.C. 1371, for incidental taking of ESA-listed marine 
mammals. 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 consecutive years shall allow the incidental, but not intentional, 
taking of marine mammal species or 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, 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 pursuant to 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 TRP 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 2024 MMPA LOF (89 FR 
12257, February 16, 2024) 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, 
we proposed to issue permits under MMPA section 101(a)(5)(E) to vessels 
registered in four Category I or Category II commercial fisheries, as 
classified on the final 2024 MMPA LOF, to incidentally kill or 
seriously injure individuals from specific ESA-listed marine mammal 
stocks, as listed in table 1 below (89 FR 15843, March 5, 2024).

    Table 1--Commercial Fisheries Authorized to Take (M/SI) Specific
     Threatened and Endangered Marine Mammals Incidental to Fishing
                               Operations
------------------------------------------------------------------------
                                                      ESA-listed marine
      Commercial fishery           LOF category         mammal stock
------------------------------------------------------------------------
HI deep-set longline/Western   I..................  False killer whale,
 Pacific pelagic longline (HI                        Main HI Islands
 deep-set component) \1\.                            Insular.
AK Bering Sea, Aleutian        II.................  Bearded seal,
 Islands flatfish trawl.                             Beringia Humpback
                                                     whale, Western
                                                     North Pacific
                                                     Ringed seal, Arctic
                                                     Steller sea lion,
                                                     Western U.S.
AK Bering Sea, Aleutian        II.................  Bearded seal,
 Islands pollock trawl.                              Beringia Humpback
                                                     whale, Mexico-North
                                                     Pacific Humpback
                                                     whale, Western
                                                     North Pacific
                                                     Ringed seal, Arctic
                                                     Steller sea lion,
                                                     Western U.S.
AK Gulf of Alaska sablefish    II.................  Sperm whale, North
 longline.                                           Pacific Steller sea
                                                     lion, Western U.S.
------------------------------------------------------------------------
\1\ The Western Pacific pelagic longline (HI deep-set component) is the
  corresponding high seas component of the HI deep-set longline fishery
  as defined on the MMPA LOF.

    Category III fisheries are those commercial fisheries that have a 
remote likelihood of or no known incidental mortality or serious injury 
of marine mammals (MMPA section 118(c)(1)(A)(iii)). All commercial 
fisheries classified as Category III on the most current LOF do not 
require MMPA 101(a)(5)(E) authorization so long as any mortality or 
injury of marine mammals incidental to their operations is reported 
pursuant to MMPA section 118(e).

[[Page 50272]]

Furthermore, per NMFS' Procedural Directive 02-204-02 (procedural 
directive), ``Criteria for Determining Negligible Impact under MMPA 
section 101(a)(5)(E)'' (NMFS 2020), NMFS considers such Category III 
fisheries to have a negligible impact on that marine mammal stock or 
species.
    Thus, we incorporate by reference all Category III fisheries 
included in the 2024 MMPA LOF (89 FR 12257, February 16, 2024) as not 
subject to the ESA prohibition against incidentally taking marine 
mammals from endangered or threatened species and not subject to any 
penalties, provided any mortalities or injures are reported as required 
under MMPA section 118(e).
    In addition, specifically for the purposes of MMPA section 
101(a)(5)(E), commercial fisheries classified as Category I or II on 
the LOF solely because of incidental M/SI of non-ESA-listed marine 
mammals meet the definition of a Category III commercial fishery with 
respect to ESA-listed stocks or species because the fishery has a 
remote likelihood of or no known incidental M/SI of ESA-listed marine 
mammals (NMFS 2020). In other words, if the commercial fishery is a 
Category I or II fishery because of incidental take of non-ESA listed 
marine mammals, we consider it a Category III fishery here. We have 
determined that the following Category I and II commercial fisheries 
meet this criteria:

Category I

     Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics 
longline; and
     AK Southeast salmon drift gillnet;

Category II

     AK Bristol Bay salmon drift gillnet;
     AK Kodiak salmon set gillnet;
     AK Peninsula/Aleutian Islands salmon set gillnet;
     AK Yakutat salmon set gillnet; and
     HI shallow-set longline/Western Pacific pelagic longline 
(HI shallow-set component).
    These fisheries do not require 101(a)(5)(E) authorization and are 
not subject to the ESA prohibition against incidentally taking marine 
mammals from endangered or threatened stocks and not subject to any 
penalties, provided any marine mammal mortalities or injuries are 
reported as required under MMPA section 118(e).
    NMFS regularly evaluates 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 fisheries in table 1 is 
available in the 2024 MMPA LOF (89 FR 12257, February 16, 2024) and on 
the internet at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables.
    For each commercial fishery listed in table 1, we reviewed the best 
available scientific information to determine if the fishery met the 
three requirements of MMPA section 101(a)(5)(E) for issuing a permit. 
This information is included in the 2024 MMPA LOF (89 FR 12257, 
February 16, 2024), 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 permits 
(available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0003).

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 uses 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 three findings necessary for 
issuing a MMPA 101(a)(5)(E) permit to the commercial fishery has been 
met (i.e., a NID). 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 NITs allow for straightforward calculations that lead to 
clear negligible or non-NIDs for each

[[Page 50273]]

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 Determinations

    NMFS evaluated the impact of each commercial fishery (listed in 
table 1 above) following the directive and based on the best available 
scientific information, made NIDs. These NID analyses are presented in 
accompanying MMPA 101(a)(5)(E) evaluation documents that provide 
summaries of the information used to evaluate each ESA-listed stock 
documented on the 2024 MMPA LOF as killed or injured incidental to the 
fishery (available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables). The final MMPA 
101(a)(5)(E) evaluation documents are available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0003.
    The following stocks listed in table 1 are transboundary stocks: 
Western North Pacific stock of humpback whale, Mexico-North Pacific 
stock of humpback whale, North Pacific stock of sperm whale, Western 
U.S. stock of Steller sea lion, Beringia stock of bearded seal, and 
Arctic stock of ringed seal. 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 for the 
above transboundary stocks and proceeded directly to the Tier 2 
NITs analysis.
    The most recent SARs for several stocks listed in table 1 include 
fishery-related M/SI not assigned to a specific commercial fishery 
(information provided in NID analyses summaries where applicable 
below). This unattributed fishery-related M/SI could be from any number 
of commercial, recreational, or subsistence fisheries, including 
fisheries listed in table 1. 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 NID Tier 2 analyses (described below). NMFS is 
actively monitoring the fisheries in table 1 through fishery observer 
programs. If additional fishery-related M/SI is documented through the 
observer programs that indicate additional M/SI of the stocks listed in 
table 1, then NMFS will re-evaluate the appropriate NID and the permit.
    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 four Category I and II fisheries listed 
in table 1 will have a negligible impact on the associated ESA-listed 
marine mammal stocks. Accordingly, this MMPA 101(a)(5)(E) requirement 
is satisfied for these commercial fisheries (see MMPA 101(a)(5)(E) 
determination document is available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0003). Summaries of the NID analyses are provided 
below.

HI Deep-Set Longline/Western Pacific Pelagic Longline (HI Deep-Set 
Component) Fishery

    The Category I HI deep-set longline/Western Pacific pelagic 
longline (HI deep-set component) fishery has documented incidental M/SI 
of the main HI Islands (MHI) insular stock of false killer whale in the 
2023 draft SAR (Carretta et al. In press). The total annual average 
human caused M/SI for this stock (0.1) does not exceed NITt 
(0.258); thus, the Tier 1 analysis is satisfied and all commercial 
fisheries are considered to have a negligible impact on this stock (see 
accompanying MMPA 101(a)(5)(E) evaluation document linked above for NIT 
calculation).

AK Bering Sea, Aleutian Islands Flatfish Trawl Fishery

    The Category II AK Bering Sea, Aleutian Islands flatfish trawl 
fishery has documented incidental M/SI of the Western U.S. stock of 
Steller sea lion in the 2023 draft SAR (Young et al. In press). The 
2023 SAR includes mean annual total commercial fishery-related M/SI 
(39) for the Western U.S. stock of Steller sea lion. This comprises M/
SI from all commercial fisheries, including the AK Bering Sea, Aleutian 
Islands flatfish trawl fishery, as well as fishery-related M/SI for the 
stock not assigned to a specific commercial fishery. The SAR also 
includes unattributed fishery-related M/SI (1.9) for the stock, which 
is not assigned to a specific commercial fishery.
    The estimated M/SI of Steller sea lions (Western U.S. stock) in the 
AK Bering Sea, Aleutian Islands flatfish trawl fishery is 13, based on 
observer data. Since this M/SI (13) is less than NITs 
(38.87), NMFS determined that the AK Bering Sea, Aleutian Islands 
flatfish trawl fishery has a negligible impact on the Western U.S. 
stock of Steller sea lion (see accompanying MMPA 101(a)(5)(E) 
evaluation document).
    The Category II AK Bering Sea, Aleutian Islands flatfish trawl 
fishery has documented M/SI of the Western North Pacific stock of 
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR 
includes mean annual total commercial fishery-related M/SI (0.012) for 
the Western North Pacific stock of humpback whale. This comprises M/SI 
from all commercial fisheries, including the AK Bering Sea, Aleutian 
Islands flatfish trawl fishery, as well as fishery-related M/SI for the 
stock not assigned to a specific commercial fishery. The SAR also 
includes unattributed fishery-related M/SI (0.001) 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 subsistence fisheries, including the AK Bering Sea, 
Aleutian Islands flatfish trawl fishery.
    The estimated M/SI of humpback whales (Western North Pacific stock) 
in the AK Bering Sea, Aleutian Islands flatfish trawl fishery is 0, 
based on observer data. Since this M/SI (0) is less than 
NITs (0.439), NMFS determined that the AK Bering Sea, 
Aleutian Islands flatfish trawl fishery has a negligible impact on the 
Western North Pacific stock of humpback whale (see accompanying MMPA 
101(a)(5)(E) evaluation document).
    The Category II AK Bering Sea, Aleutian Islands flatfish trawl 
fishery has documented incidental M/SI of the Beringia stock of bearded 
seal in the 2020 final SAR (Muto et al. 2021). The mean annual total 
commercial fishery-related M/SI of the Beringia stock of bearded seal 
is 1.8, and all attributed to trawl fisheries. The estimated M/SI of 
bearded seals (Beringia stock) in the AK Bering Sea, Aleutian Islands 
flatfish trawl fishery is 1.2, based on observer data. Since this M/SI 
(1.2) is less than NITs (213.5), NMFS determined that the AK 
Bering Sea, Aleutian Islands flatfish trawl fishery has a negligible 
impact on the Beringia stock of bearded seal (see accompanying MMPA 
101(a)(5)(E) evaluation document).
    The Category II AK Bering Sea, Aleutian Islands flatfish trawl 
fishery has documented incidental M/SI of the Arctic stock of ringed 
seal in the 2020 final SAR (Muto et al. 2021). The mean annual total 
commercial fishery-related M/SI of the Arctic stock of ringed seal is 
4.8, and all attributed to trawl fisheries. The estimated M/SI of 
ringed seals (Arctic stock) in the AK Bering Sea, Aleutian Islands 
flatfish trawl fishery is 4.6, based on observer data. Since this M/SI 
(4.6) is less than NITs (123.6), NMFS determined that the AK 
Bering Sea, Aleutian Islands flatfish trawl fishery has a negligible 
impact on the Arctic stock of ringed seal (see accompanying MMPA 
101(a)(5)(E) evaluation document).

[[Page 50274]]

AK Bering Sea, Aleutian Islands Pollock Trawl Fishery

    The Category II AK Bering Sea, Aleutian Islands pollock trawl 
fishery has documented incidental M/SI of the Western U.S. stock of 
Steller sea lion in the 2023 draft SAR (Young et al. In press). The 
2023 SAR includes mean annual total commercial fishery-related M/SI 
(39) for the Western U.S. stock of Steller sea lion. This comprises M/
SI from all commercial fisheries, including the AK Bering Sea, Aleutian 
Islands flatfish trawl fishery, as well as fishery-related M/SI for the 
stock not assigned to a specific commercial fishery. The SAR also 
includes unattributed fishery-related M/SI (1.9) for the stock, which 
is not assigned to a specific commercial fishery.
    The estimated M/SI of Steller sea lions (Western U.S. stock) in the 
AK Bering Sea, Aleutian Islands pollock trawl fishery is 6.8, based on 
observer data. Since this M/SI (6.8) is less than NITs 
(38.87), NMFS determined that the AK Bering Sea, Aleutian Islands 
pollock trawl fishery has a negligible impact on the Western U.S. stock 
of Steller sea lion (see accompanying MMPA 101(a)(5)(E) evaluation 
document).
    The Category II AK Bering Sea, Aleutian Islands pollock trawl 
fishery has documented incidental M/SI of the Arctic stock of ringed 
seal in the 2020 final SAR (Muto et al. 2021). The estimated M/SI of 
ringed seals (Arctic stock) in the AK Bering Sea, Aleutian Islands 
pollock trawl fishery is 0.2, based on observer data. Since this M/SI 
(0.2) is less than NITs (123.6), NMFS determined that the AK 
Bering Sea, Aleutian Islands pollock trawl fishery has a negligible 
impact on the Arctic stock of ringed seal (see accompanying MMPA 
101(a)(5)(E) evaluation document).
    The Category II AK Bering Sea, Aleutian Islands pollock trawl 
fishery has documented M/SI of the Western North Pacific stock of 
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR 
includes mean annual total commercial fishery-related M/SI (0.012) for 
the Western North Pacific stock of humpback whale. This comprises M/SI 
from all commercial fisheries, including the AK Bering Sea, Aleutian 
Islands pollock trawl fishery, as well as fishery-related M/SI for the 
stock not assigned to a specific commercial fishery. The SAR also 
includes unattributed fishery-related M/SI (0.001) for the stock, which 
is not assigned to a specific commercial fishery.
    The estimated M/SI of humpback whales (Western North Pacific stock) 
in the AK Bering Sea, Aleutian Islands pollock trawl fishery is 0.008, 
based on observer data. Since this M/SI (0.008) is less than 
NITs (0.439), NMFS determined that the AK Bering Sea, 
Aleutian Islands pollock trawl fishery has a negligible impact on the 
Western North Pacific stock of humpback whale (see accompanying MMPA 
101(a)(5)(E) evaluation document).
    The Category II AK Bering Sea, Aleutian Islands pollock trawl 
fishery has documented M/SI of the Mexico-North Pacific stock of 
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR 
includes mean annual total commercial fishery-related M/SI (0.36) for 
the Mexico-North Pacific stock of humpback whale. This comprises M/SI 
from all commercial fisheries, including the AK Bering Sea, Aleutian 
Islands pollock trawl fishery, as well as fishery-related M/SI for the 
stock not assigned to a specific commercial fishery. The SAR also 
includes unattributed fishery-related M/SI (0.05) for the stock, which 
is not assigned to a specific commercial fishery.
    The estimated M/SI of humpback whales (Mexico-North Pacific stock) 
in the AK Bering Sea, Aleutian Islands pollock trawl fishery is 0.03, 
based on observer data. As described in the 2022 final SAR, the minimum 
population estimate (Nmin) for this stock is considered 
unknown (Young et al. 2023), and therefore NITs cannot be 
calculated directly. Using the process outlined in the directive (NMFS 
2020), a threshold Nmin for NITs was calculated. 
The threshold Nmin for NITs is 69.93. Since it is 
likely that the minimum population for the Mexico-North Pacific stock 
of humpback whale exceeds the threshold Nmin, NMFS has 
determined that the AK Bering Sea, Aleutian Islands pollock trawl 
fishery has a negligible impact on the Mexico-North Pacific stock of 
humpback whale (see accompanying MMPA 101(a)(5)(E) evaluation 
document).
    The Category II AK Bering Sea, Aleutian Islands pollock trawl 
fishery has documented incidental M/SI of the Beringia stock of bearded 
seal in the 2020 final SAR (Muto et al. 2021). The estimated M/SI of 
bearded seal (Beringia stock) in the AK Bering Sea, Aleutian Islands 
pollock trawl fishery is 0.6, based on observer data. Since this M/SI 
(0.6) is less than NITs (213.5), NMFS determined that the AK 
Bering Sea, Aleutian Islands pollock trawl fishery has a negligible 
impact on the Beringia stock of bearded seal (see accompanying MMPA 
101(a)(5)(E) evaluation document).

AK Gulf of Alaska Sablefish Longline Fishery

    The Category II AK Gulf of Alaska sablefish longline fishery has 
documented M/SI of North Pacific stock of sperm whale in the 2020 final 
SAR (Muto et al. 2021). The estimated M/SI of sperm whales (North 
Pacific stock) in the AK Gulf of Alaska sablefish longline fishery is 
1.1, based on observer data.
    As noted in the SAR, current and historical abundance estimates of 
sperm whales in the North Pacific are based on limited data and are 
considered unreliable; caution should be exercised in interpreting 
published estimates. Further, sperm whales are far-ranging and exhibit 
sex segregation and stock overlap that together make population size 
estimation difficult (Muto et al. 2021). More specifically, females and 
juveniles are unlikely to occur in this area, so the abundance estimate 
includes only males. As described in the 2020 final SAR, a 
Nmin can be calculated for this stock using the population 
estimate of 345 (coefficient of variation (CV) = 0.43) from surveys in 
the Gulf of Alaska in 2015, the Nmin is then derived from 
the estimate and CV and results in a Nmin of 244 sperm 
whales. However, this Nmin (244) is an underestimate for the 
entire stock because it is based on surveys of a small portion of the 
stock's extensive range and it does not account for animals missed on 
the trackline or for females and juveniles in tropical and subtropical 
waters (Muto et al. 2021). Therefore, using the process outlined in the 
directive (NMFS 2020), we calculated a threshold Nmin for 
NITs which is 4,230.8. Genetic evidence suggests that the 
males sampled in the sub-Artic come from multiple populations at lower 
latitudes including the West Coast (Nmin = 1,270) and 
Hawai[revaps]i (Nmin = 4,486) stocks as well as the Eastern 
Tropical Pacific stock and thus do not represent the males from a 
single population (Mesnick et al. 2011). Given the uncertainty of the 
stock assessment and the underestimated abundance, NMFS has determined 
that it is likely that the abundance is greater than the threshold 
Nmin and that the AK Gulf of Alaska sablefish longline 
fishery has a negligible impact on the North Pacific stock of sperm 
whale (see accompanying MMPA 101(a)(5)(E) evaluation document).
    The Category II AK Gulf of Alaska sablefish longline fishery has 
documented incidental M/SI of the Western U.S. stock of Steller sea 
lion in the 2023 draft SAR (Young et al. In press). The 2023 SAR 
includes mean annual total commercial fishery-related M/SI (39) for the 
Western U.S. stock of

[[Page 50275]]

Steller sea lion. This comprises M/SI from all commercial fisheries, 
including the AK Gulf of Alaska sablefish longline fishery, as well as 
fishery-related M/SI for the stock not assigned to a specific 
commercial fishery. The SAR also includes unattributed fishery-related 
M/SI (1.9) for the stock, which is not assigned to a specific 
commercial fishery.
    The estimated M/SI of Steller sea lions (Western U.S. stock) in the 
AK Gulf of Alaska sablefish longline fishery is 1.9, based on observer 
data. Since this M/SI (1.9) is less than NITs (38.87), NMFS 
determined that the AK Gulf of Alaska sablefish longline fishery has a 
negligible impact on the Western U.S. stock of Steller sea lion (see 
accompanying MMPA 101(a)(5)(E) evaluation document).

Recovery Plans

    Recovery plans for Steller sea lions, sperm whales, and false 
killer whales (MHI insular) have been completed (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act).
    A new recovery plan for humpback whales is being developed. In 
2016, NMFS revised the listing status of the humpback whale under the 
ESA. The globally listed endangered species was divided into 14 
distinct population segments (DPSs), the species-level listing was 
removed, and NMFS listed four DPSs as endangered and one DPS as 
threatened (81 FR 62260, September 8, 2016). In June 2022, NMFS 
published a recovery outline for the Central America, Mexico, and 
Western North Pacific DPSs of humpback whales (https://www.fisheries.noaa.gov/resource/document/recovery-outline-central-america-mexico-and-western-north-pacific-distinct). The recovery 
outline serves as an interim guidance document and, with the existing 
species-wide recovery plan, directs recovery efforts, including 
recovery planning, for the Central America, Mexico, and Western North 
Pacific DPSs of humpback whales. Once finalized, the new recovery plan 
will replace the species-wide recovery plan that was published in 1991.
    Recovery plans for bearded and ringed seals are also being 
developed.
    Accordingly, the requirement that a recovery plan has been 
developed or is being developed pursuant to the ESA is satisfied.

Take Reduction Plans

    The MMPA section 118 requires the development and implementation of 
a TRP for each strategic stock that interacts with a Category I or II 
fishery. Subject to available funding, the Secretary shall give highest 
priority to the development of TRPs for species or stocks whose M/SI 
exceeds potential biological removal (PBR) level, have a small 
population size, and which are declining most rapidly. The stocks 
considered for these permits are designated as strategic stocks under 
the MMPA because the stocks or a component of the stocks are listed as 
threatened species or endangered species under the ESA (MMPA section 
3(19)(C)).
    The MMPA establishes short- and long-term goals of a TRP. The 
short-term goal of a TRP is to reduce M/SI of marine mammals 
incidentally taken in commercial fisheries to levels below the PBR for 
stocks. The long-term goal is to reduce M/SI of marine mammals 
incidentally taken in commercial fisheries to levels below the 
insignificant threshold, defined by NMFS as 10 percent of a stock's PBR 
level (50 CFR 229.2). 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 SAR and LOF as the 
basis to determine its priorities for establishing 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.
    The HI deep-set longline fishery, for the affected marine mammal 
species or stocks (table 1), has a TRP in place.
    Both the AK Bering Sea, Aleutian Islands flatfish trawl and AK 
Bering Sea, Aleutian Islands pollock trawl fisheries, for the affected 
marine mammals species or stocks (table 1) have met the long-term goals 
of a TRP (i.e., M/SI of marine mammals incidentally taken in these 
fisheries is below the insignificant threshold, which is 10 percent of 
a stock's PBR level).
    PBR and incidental M/SI for each stock listed in table 1 in the AK 
Bering Sea, Aleutian Islands flatfish trawl fishery are as follows:
     Bearded seal, Beringia--PBR = 8,210, M/SI = 1.2, M/SI as 
percent of the stock's PBR = 0.01 percent;
     Humpback whale, Western North Pacific--PBR = 0.2, M/SI = 
0, M/SI as percent of stock's PBR = 0 percent;
     Ringed seal, Arctic--PBR = 4,755, M/SI = 4.6, M/SI as 
percent of the stock's PBR = 0.097 percent; and
     Steller sea lion, Western U.S--PBR = 299, M/SI = 13, M/S 
as percent of the stock's PBR = 4.3 percent.
    PBR and incidental M/SI for each stock listed in table 1 in the AK 
Bering Sea, Aleutian Islands pollock trawl fishery are as follows:
     Bearded seal, Beringia--PBR = 8,210, M/SI = 0.6, M/SI as 
percent of the stock's PBR = 0.007 percent;
     Humpback whale, Mexico-North Pacific--PBR is undetermined, 
M/SI = 0.03; \1\
---------------------------------------------------------------------------

    \1\ Nmin for the Mexico-North Pacific stock of 
humpback whale in the winter and summer areas is 2,241 and 766, 
respectively. Both of these estimates of abundance are based on data 
collected more than 15 years ago. As stated in the 2022 SAR, because 
Nmin is considered unknown, PBR is undetermined. Based on 
the dated Nmin for this population, that NMFS believes 
the population to be either stable or increasing, and the incidental 
M/SI of 0.03 in the AK Bering Sea, Aleutian Islands pollock trawl 
fishery, NMFS estimates the M/SI is below 10 percent of the stock's 
PBR.
---------------------------------------------------------------------------

     Humpback whale, Western North Pacific--PBR = 0.2, M/SI = 
0.008, M/SI as percent of stock's PBR = 4 percent;
     Ringed seal, Arctic--PBR = 4,755, M/SI = 0.2, M/SI as 
percent of the stock's PBR = 0.004 percent; and
     Steller sea lion, Western U.S--PBR = 299, M/SI = 6.8, M/SI 
as percent of the stock's PBR = 2.2 percent.
    Marine mammal M/SI incidental to each commercial fishery (AK Bering 
Sea, Aleutian Islands flatfish trawl, and AK Bering Sea, Aleutian 
Islands pollock trawl) is below 10 percent of each stock's PBR; thus it 
is already below the insignificance threshold and approaching a zero M/
SI rate (i.e., achieved the long-term goal of a TRP). MMPA section 
118(b) requires fisheries to reduce incidental M/SI to insignificant 
levels and states that fisheries that maintain insignificant M/SI 
levels shall not be required to further reduce those rates. Therefore, 
the AK Bering Sea, Aleutian Islands flatfish trawl and AK Bering Sea, 
Aleutian Islands pollock trawl fisheries cannot be required to further 
reduce M/SI rates associated with marine mammal species or stocks. As a 
result, further take reduction planning is not appropriate at this 
time.
    As noted above and in the SAR, the Nmin (244) for the 
North Pacific stock of sperm whales ``is an underestimate for the 
entire stock because it is based on surveys of a small portion of the 
stock's extensive range and it does not account for animals missed on 
the trackline or

[[Page 50276]]

for females and juveniles in tropical and subtropical waters'' (Muto et 
al. 2021). A TRP for M/SI of the North Pacific stock of sperm whales in 
the AK Gulf of Alaska sablefish longline fishery is under development 
and will progress as information gaps are addressed.
    In addition, the AK Gulf of Alaska sablefish longline fishery has 
met the long-term goal of a TRP for the Western U.S. stock of Steller 
sea lion (i.e., M/SI incidentally taken in this fisheries is below the 
insignificant threshold, which is 10 percent of a stock's PBR level). 
PBR for the Western U.S. stock of Steller sea lion is 299 and 
incidental M/SI in the AK Gulf of Alaska sablefish longline fishery is 
1.9 which is 0.6 percent of PBR.
    All of the evaluated fisheries listed in table 1, for the affected 
marine mammal species or stocks, have a TRP in place, achieved the 
long-term goal of MMPA section 118(f), or based on NMFS' priorities, 
implementation of a TRP is currently deferred under section 118 as 
other stocks/fisheries are a higher priority for any available funding 
for establishing new TRPs. Accordingly, the requirement under MMPA 
section 118 to have TRPs in place or in development is satisfied (see 
determinations supporting the permits available on the internet at 
https://www.regulations.gov/docket/NOAA-NMFS-2024-0003).

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. Each of the fisheries listed in table 1 is monitored by 
NMFS fishery observer programs. 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 Permits

    Based on the above evaluation for each commercial fishery listed in 
table 1 as it relates to the three requirements of MMPA section 
101(a)(5)(E), we are issuing MMPA 101(a)(5)(E) permits to the 
commercial fisheries in table 1 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 any of these determinations, 
NMFS will re-evaluate whether to amend or modify the authorization, 
after notice and opportunity for public comment. If the authorization 
for an individual fishery in table 1 becomes amended, modified, or 
invalidated for any reason during the 3-year period, the authorizations 
for the other commercial fisheries in table 1 will continue unchanged 
and effective until the end of the 3-year period.

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 are not likely to jeopardize 
the continued existence of any species listed under the ESA, or destroy 
or adversely modify designated critical habitat of any ESA-listed 
species. The effects of these four commercial fisheries on ESA-listed 
marine mammals in table 1, were analyzed in the appropriate ESA section 
7 Biological Opinions on the commercial fishery, and incidental take 
was exempted under the ESA for those ESA-listed marine mammals for each 
of these fisheries in accordance with the Biological Opinions' 
incidental take statement. Under section 7 of the ESA, Biological 
Opinions quantify the effects of the proposed action on ESA-listed 
species and their critical habitat and, where appropriate, exempt take 
of ESA-listed species that is reasonably certain to occur, 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 NID 
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, do 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 these permits 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 these permits. Issuing the permits 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 March 5, 2024, NMFS published a notice and request for comments 
in the Federal Register for the proposed issuance of permits under MMPA 
section 101(a)(5)(E) (89 FR 15843). The public comment period closed on 
April 4, 2024. NMFS received three comment letters on the proposed 
issuance of the permits and underlying preliminary determinations. The 
Center for Biological Diversity (CBD) opposed issuing the permits. In 
addition, two comment letters (one in support of issuing the permits 
and one opposed to issuing the permits) were submitted from members of 
the public. Only responses to significant comments pertaining to the 
proposed permits and preliminary determinations under MMPA section 
101(a)(5)(E) are addressed below.
    Comment 1: CBD comments that NMFS has not developed TRPs for most 
of the stocks in the proposed permits as required under MMPA section 
101(a)(5)(E). They further comment that the MMPA's goal is to reduce M/
SI for a strategic stock from all commercial fishing operations and 
state that not all the stocks in the proposed permits are approaching a 
zero M/SI rate.
    Response: The MMPA's short-term goal of a TRP is to reduce M/SI of 
marine mammals incidentally taken in commercial fisheries to levels 
below a stock's PBR. The MMPA's long-term goal is to reduce M/SI of 
marine mammals incidentally taken in commercial fisheries to levels 
below the insignificant threshold, defined by NMFS as 10 percent of a 
stock's PBR level (50 CFR 229.2). Both the AK Bering Sea, Aleutian 
Islands flatfish trawl and AK Bering Sea, Aleutian Islands pollock 
trawl fisheries, for the affected marine mammals species or stocks 
(table 1) have met the long-term goals of a TRP (i.e., M/SI of marine 
mammals incidentally taken in these fisheries is below the 
insignificant threshold, which is 10 percent of a stock's PBR level) 
(see Take Reduction Plans section).
    Before convening a TRT, it is critical to have a sufficient level 
of data on abundance and mortality available to inform TRT discussions 
and support successful TRP development (16 U.S.C. 1387(f)(4)). At a 
minimum, abundance and observer data are needed to estimate

[[Page 50277]]

PBR and commercial fishery-related M/SI levels, which are used to 
determine TRP goals and whether those goals have been met (16 U.S.C. 
1387(f)(2)). Without this crucial information, a TRT is not able to 
make informed decisions and meaningful recommendations to NMFS. 
Moreover, if abundance and stock structure data are substantially 
biased, it could result in an ineffective TRP (e.g., measures developed 
and implemented are not sufficient to reduce M/SI of a stock and stock 
declines or lack of recovery could continue). Thus, the first step in 
development of a TRP, prior to convening a TRT, is to ensure the 
availability of critical underlying data.
    There are key technical uncertainties in the current North Pacific 
sperm whale SAR that must be addressed. In general, sperm whales' 
unusual hierarchical social and population structure present 
difficulties in modeling population dynamics and estimating abundance 
given their deep diving behavior. There is little current information 
about the broad-scale distribution of sperm whales in Alaska waters, 
and a ``reliable'' abundance estimate for the entire stock is 
considered unavailable because the abundance data is more than 8 years 
old (see Muto et al. 2021). Further, determining the relationship 
between high latitude large males (such as those present in Alaska 
waters) to breeding groups is essential to understanding population 
dynamics, and whether the current stock contains one or more 
demographically independent populations. As discussed above, the 
current North Pacific sperm whale abundance estimate is based on a 
small portion of the population (largely males) and therefore, the data 
to evaluate the impact of commercial fisheries on this population is 
substantially biased. NMFS is taking the necessary steps to address 
these uncertainties and will review and revise the North Pacific sperm 
whale SAR in accordance with section 117(c) of the MMPA (16 U.S.C. 
1386(c)).
    Most recently, in April 2024 at the 69th Scientific Committee 
(SC69B) meeting of the International Whaling Commission (IWC), NMFS 
scientists on the U.S. delegation to the IWC Scientific Committee 
proposed a workshop to conduct an assessment of sperm whale populations 
in the Eastern North Pacific. The Scientific Committee recognized that 
it has been almost 20 years since the last effort to assess the status 
of North Pacific sperm whale population and agreed to establish an 
intersessional correspondence group to help assess available data for a 
North Pacific sperm whale assessment and develop a workshop proposal. 
This work is necessary to prepare for a future in-depth assessment of 
North Pacific sperm whales under the auspices of the IWC, which would 
inform the work of a TRT. Following the process described in NMFS 
Procedural Directive 02-204-03 Reviewing and Designating Stocks and 
Issuing Stock Assessment Reports under the Marine Mammal Protection Act 
(NMFS 2019), NMFS is investigating whether the existing North Pacific 
stock of sperm whales constitutes one or more demographically 
independent populations, which, depending on the findings, could lead 
to a revised stock structure for North Pacific stock of sperm whales.
    Therefore, and as described in the Take Reduction Plan sections of 
the proposed permits (89 FR 15843, March 5, 2024), and this Federal 
Register notice, all of the evaluated fisheries listed in table 1, for 
the affected marine mammal species or stocks, have a TRP in place, 
achieved the long-term goal of TRPs (see 16 U.S.C. 1387(f)(2)), or 
implementation of a TRP is under development and will progress as 
information gaps are addressed. Accordingly, the requirement under MMPA 
section 118 to have TRPs in place or in development is satisfied.
    Comment 2: CBD states that the NITs defined in NMFS' ``Criteria for 
Determining Negligible Impact under MMPA section 101(a)(5)(E)'' are set 
at the same level as PBR and are insufficiently protective. They 
further commented that NMFS misreported the mean estimated annual M/SI 
of MHI false killer whales in the HI deep-set longline fishery (0.3), 
and that the correct value should be 0.1. CBD requests NMFS set a 
negligible impact threshold lower than PBR and evaluate whether the 
correct M/SI exceeds that threshold.
    Response: CBD's comments on the NITs as described in NMFS' 
``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. NMFS reviewed the M/SI information 
provided by CBD and revised the NID analysis for the HI deep-set 
longline fishery using the most recent data in the draft 2023 SAR 
(Carretta et al. In press). The total annual average human caused M/SI 
for the MHI insular stock of false killer whale (0.1) does not exceed 
NITt (0.258). Using the revised NID analysis results in the 
same NID as in the proposed permit for the HI deep-set longline 
fishery. The Tier 1 analysis is satisfied, and all commercial fisheries 
are considered to have a negligible impact on this stock (see 
accompanying MMPA 101(a)(5)(E) evaluation document).
    Comment 3: CBD comments that NMFS did not use the correct abundance 
estimate for the Western North Pacific stock of humpback whale in the 
NID analyses for the proposed permits. They state NMFS used a 
Nmin of 1,007, which is for the entire Western North Pacific 
humpback whale population, instead of the Nmin of 75 for the 
portion of Western North Pacific humpback whale population in U.S 
waters.
    Response: NMFS disagrees. While NMFS' procedural directive 
``Criteria for Determining Negligible Impact under MMPA section 
101(a)(5)(E)'' does not specify that the Nmin used in the 
analysis be the Nmin for U.S. waters, section 101(a)(5)(E) 
requires ``the incidental mortality and serious injury from commercial 
fisheries will have a negligible impact on such species or stock.'' 16 
U.S.C. 1371(a)(5)(E)(i)(I). Consistent with this statutory requirement, 
NMFS used Nmin for the Western North Pacific stock of 
humpback whale. As noted in the Federal Register notice for the 
proposed permits (89 FR 15843, March 5, 2024), the Western North 
Pacific stock of humpback whale is a transboundary stock. 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. NMFS conducted the Tier 2 NITs analysis using the 
stock wide Nmin (1,007) for the Western North Pacific 
humpback whale given that 2022 SAR provides some M/SI data for 
commercial fisheries outside of U.S waters.
    Comment 4: CBD states that NMFS estimated fishery M/SI in U.S. 
waters and only assigned 2 out of every 100 humpback whale M/SI to the 
Western North Pacific stock of humpback whales instead of assigning 
each M/SI to each humpback whale stock. CDB asserts that NMFS did not 
discuss the potential for underestimated stock-specific M/SI when 
partitioning M/SI among overlapping stocks in the SAR, as required by 
the Guidelines for Assessing Marine Mammal Stocks (GAMMS).
    Response: Insofar as CBD alleges NMFS used the incorrect M/SI value 
in its NID analysis, NMFS disagrees. The NID analysis and 101(a)(5)(E) 
permit evaluation are based on the best scientific information 
available as summarized in the published SARs. The

[[Page 50278]]

process of apportioning M/SI in areas with overlapping stocks is part 
of the SAR process, which includes review by a statutorily established 
scientific review group and its own opportunity for public review and 
comment (see 16 U.S.C. 1386(b),(d); 88 FR 4162, Jan. 24, 2023; 88 FR 
54592, August 11, 2023).
    Comment 5: CBD asserts that NMFS did not adequately explain why the 
Nmin and PBR from the SAR were not used for the NID analysis 
for the AK Gulf of Alaska sablefish longline fishery. They state that 
the NID analysis for the North Pacific stock of sperm whale 
incidentally killed or injured in the AK Gulf of Alaska sablefish 
longline fishery ignores the SAR's Nmin and PBR. The North 
Pacific sperm whale SAR includes a Nmin of 244 and PBR of 
0.5; however, the NID analysis uses a threshold abundance of 4,230.8 
sperm whales. CBD notes that just because the estimate of 244 sperm 
whales is an underestimate does not mean that the estimate is 
``unavailable'' and does not warrant an alternative calculation in the 
NID analysis. They continue further that the SAR caveats the PBR by 
stating it ``does not account for females and juveniles in tropical and 
subtropical waters,'' but that since the fishery operates in the Gulf 
of Alaska it is not reasonable to compare M/SI in U.S waters to the 
population as a whole.
    Response: Following the GAMMS, NMFS publishes all known population 
estimates and calculates a PBR wherever possible in the SARs. However, 
in some cases, the abundance estimate and corresponding Nmin 
are only a small portion of the stock's range and/or are not 
representative for other reasons. In the case of the North Pacific 
stock of sperm whale, a ``reliable'' abundance estimate for the entire 
stock is considered unavailable because the abundance data is more than 
8 years old (see Muto et al. 2021). Additionally, Nmin is 
considered an underestimate for the entire stock because surveys are 
from only a small portion of the stock's range and it does not take 
into account females and juveniles in tropical and subtropical waters 
(see Muto et al. 2021). The calculated PBR (0.5 animals) for this stock 
is deemed ``not reliable'' as an index for the entire stock and is 
generally not used for management purposes for the entire stock (see 
Muto et al. 2021). Therefore, we considered Nmin unavailable 
for the purpose of the NID. In accordance with NMFS' ``Criteria for 
Determining Negligible Impact under MMPA section 101(a)(5)(E)'', the 
NITs threshold approach is used in the NID analysis where no 
estimate of Nmin is available, which indicates that a 
minimum Nmin threshold of 4,230 must be likely for the stock 
in order to arrive at a NID.
    Comment 6: CBD comments that total human-caused M/SI of the Western 
North Pacific stock of humpback whale exceeds the stock-wide PBR (3.4). 
In addition, they state NMFS has not estimated undocumented M/SI for 
the stock in the summer or winter feeding areas. CBD asserts that U.S. 
commercial fisheries incidentally killed or injured 5.27 humpback 
whales (Western North Pacific, Hawai'i and Mexico-North Pacific stocks) 
in 5 years. CBD further used NMFS' apportionment method to note that 
the estimated M/SI of Western North Pacific humpback whales is 0.02108, 
which exceeds 10 percent of the stock's PBR in U.S. waters and cannot 
be considered insignificant and approaching a zero M/SI rate.
    Response: NMFS follows a standardized process for estimating annual 
fishery M/SI in the SARs. As noted by CBD, M/SI of humpback whales in 
Alaska is allocated using the ``NMFS, Alaska Region Occurrence of 
Endangered Species Act (ESA) Listed Humpback Whales off Alaska'' 
guidance document. However, in cases where the stock origin is known, 
such as for the December 23, 2020 humpback whale serious injury 
documented in Mexico, the M/SI is assigned only to the confirmed stock 
and not allocated to all stocks. CBD incorrectly included this Mexico 
M/SI in their M/SI estimation for Western North Pacific stock humpback 
whales. Removing the M/SI from the Mexico North Pacific stock from the 
calculation results in a mean annual commercial fisheries mortality of 
Western North Pacific stock of 0.012 and is less than 10 percent of 
PBR. Further, when we include the October 15, 2018 entanglement where 
the whale was released from gear by trained responders (but is not 
included in the SAR because the outcome is expected to be a non-serious 
injury after intervention), the total mean annual commercial fisheries 
mortality of Western North Pacific stock is 0.016 and is less than 10 
percent of PBR.
    As noted above, the most recent SAR for the Western North Pacific 
stock of humpback whale includes fishery-related M/SI not assigned to a 
specific commercial fishery. This unattributed fishery-related M/SI 
could be from any number of commercial, recreational, or subsistence 
fisheries, including fisheries listed in table 1. 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 NID Tier 2 analysis. NMFS is actively 
monitoring the fisheries in table 1 through fishery observer programs. 
If additional fishery-related M/SI is documented through the observer 
programs that indicate additional M/SI of the Western North Pacific 
stock of humpback whale, then NMFS will re-evaluate the appropriate NID 
and the permit.

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    Dated: June 7, 2024.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-12938 Filed 6-12-24; 8:45 am]
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