Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of a Permit, 96230-96235 [2024-28380]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 233 (Wednesday, December 4, 2024)]
[Notices]
[Pages 96230-96235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28380]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE350]


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

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

ACTION: Notice.

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SUMMARY: NMFS is issuing a permit to authorize the incidental, but not 
intentional, take of specific Endangered Species Act (ESA)-listed 
marine mammal species or stocks under the Marine Mammal Protection Act 
(MMPA), in the Washington (WA)/Oregon (OR)/California (CA) sablefish 
pot fishery.

DATES: This permit is effective for a 3-year period beginning December 
4, 2024.

ADDRESSES: The materials supporting the permit are available on the 
internet at https://www.regulations.gov/docket/NOAA-NMFS-2024-0087. 
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: Dan Lawson, West Coast Region, (206) 
526-4740, [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. We have determined that the Category II WA/OR/CA sablefish 
pot fishery meets these three requirements and are issuing a permit to 
the fishery to authorize the incidental take of ESA-listed marine 
mammal species or stocks (Central America/Southern Mexico-CA/OR/WA and 
Mainland Mexico-CA/OR/WA stocks of humpback whale) 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

[[Page 96231]]

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 a permit under MMPA section 101(a)(5)(E) to 
vessels registered in the Category II WA/OR/CA sablefish pot fishery, 
as classified on the final 2024 MMPA LOF, to incidentally kill or 
seriously injure individuals from the Central America/Southern Mexico-
CA/OR/WA and Mainland Mexico-CA/OR/WA stocks of humpback whale (89 FR 
73377, September 10, 2024).
    NMFS regularly evaluates 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 fishery 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.
    We reviewed the best available scientific information to determine 
if the WA/OR/CA sablefish pot fishery met the three requirements of 
MMPA section 101(a)(5)(E) for issuing a permit. 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 
determinations supporting the permit (available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0087).

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 NIT (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,

[[Page 96232]]

including estimates of a stock's minimum population size and human-
caused M/SI levels, as published in the most recent SARs and other 
supporting documents, as appropriate. Using these inputs, the 
quantitative negligible impact thresholds allow for straightforward 
calculations that lead to clear negligible or non-negligible impact 
determinations for each commercial fishery analyzed. In rare cases, 
robust data may be unavailable for a straightforward calculation, and 
the directive provides instructions for completing alternative 
calculations or assessments where appropriate.

Negligible Impact Determination

    NMFS evaluated the impact of the WA/OR/CA sablefish pot fishery 
following the directive and based on the best available scientific 
information and made a NID. The NID analysis is presented in the 
accompanying MMPA 101(a)(5)(E) evaluation document that provides 
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 MMPA 101(a)(5)(E) 
evaluation document is available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0087.
    The Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-
CA/OR/WA stocks of humpback whale 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 for the above transboundary stocks and 
proceeded directly to the Tier 2 NITs analysis.
    The most recent SARs for the Central America/Southern Mexico-CA/OR/
WA and Mainland Mexico-CA/OR/WA stocks of humpback whale include 
fishery-related M/SI not assigned to a specific commercial fishery 
(information provided in NID analyzes summaries where applicable 
below). This unattributed fishery-related M/SI could be from any number 
of commercial, recreational, or tribal fisheries, including the WA/OR/
CA sablefish pot fishery. Because data are not currently available to 
assign the unattributed fishery-related M/SI to a specific commercial 
fishery, we did not include unattributed mortality in the calculations 
for NID Tier 2 analyses (described below). NMFS is actively monitoring 
the WA/OR/CA sablefish pot fishery through a fishery observer program. 
If additional fishery-related M/SI is documented through the observer 
program that indicates additional M/SI of the Central America/Southern 
Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA stocks of humpback whale, 
then NMFS will re-evaluate the NID and the permit.
    Based on the criteria outlined in the directive, the most recent 
SARs, and the best available scientific information, NMFS has 
determined that the M/SI of Central America/Southern Mexico-CA/OR/WA 
and Mainland Mexico-CA/OR/WA stocks of humpback whale incidental to the 
WA/OR/CA sablefish pot fishery will have a negligible impact on these 
stocks. Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied 
for WA/OR/CA sablefish pot fishery (see MMPA 101(a)(5)(E) determination 
document is available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0087). Summaries of the NID analyses are provided below.
    The Category II WA/OR/CA sablefish pot fishery has documented 
incidental M/SI of the Central America/Southern Mexico-CA/OR/WA stock 
of humpback whale. The 2022 SAR includes a mean annual total commercial 
fishery-related M/SI (8.1) for the Central America/Southern Mexico-CA/
OR/WA stock of humpback whale (Carretta et al. 2023). This comprises M/
SI from all commercial fisheries, including the WA/OR/CA sablefish pot 
fishery, as well as fishery-related M/SI for the stock not assigned to 
a specific commercial fishery. The SAR also includes unattributed 
fishery-related M/SI (4.582) for the stock, which is not assigned to a 
specific commercial fishery.
    The estimated M/SI of humpback whales (Central America/Southern 
Mexico-CA/OR/WA stock) in the WA/OR/CA sablefish pot fishery is 0.66 
(Carretta et al. 2023). Since this M/SI (0.66) is less than 
NITs (0.68), NMFS determined that the WA/OR/CA sablefish pot 
fishery has a negligible impact on the Central America/Southern Mexico-
CA/OR/WA stock of humpback whale (see accompanying MMPA 101(a)(5)(E) 
evaluation document).
    The Category II WA/OR/CA sablefish pot fishery has documented 
incidental M/SI of the Mainland Mexico-CA/OR/WA stock of humpback 
whale. The 2022 SAR includes a mean annual total commercial fishery-
related M/SI (11.4) for the Mainland Mexico-CA/OR/WA stock of humpback 
whale (Carretta et al. 2023). This comprises M/SI from all commercial 
fisheries, including the WA/OR/CA sablefish pot fishery, as well as 
fishery-related M/SI for the stock not assigned to a specific 
commercial fishery. The SAR also includes unattributed fishery-related 
M/SI (6.431) for the stock, which is not assigned to a specific 
commercial fishery.
    The estimated M/SI of humpback whales (Mainland Mexico-CA/OR/WA 
stock) in the WA/OR/CA sablefish pot fishery is 0.902 (Carretta et al. 
2023). Since this M/SI (0.902) is less than NITs (1.70), 
NMFS determined that the WA/OR/CA sablefish pot fishery has a 
negligible impact on the Mainland Mexico-CA/OR/WA stock of humpback 
whale (see accompanying MMPA 101(a)(5)(E) evaluation document).

Recovery Plans

    A recovery plan for the globally ESA-listed humpback whale species 
was developed in 1991. 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 (Central America/Southern 
Mexico-CA/OR/WA stock) and Mexico (Mainland Mexico-CA/OR/WA stock) DPSs 
of humpback whales. Once finalized, the new recovery plan will replace 
the species-wide recovery plan that was published in 1991.
    Accordingly, the requirement that a recovery plan has been 
developed pursuant to the ESA is satisfied.

Take Reduction Plan

    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 level, have a small population 
size, and which are declining most rapidly. The stocks considered for 
this permit are designated as strategic stocks under the MMPA because 
the stocks or a component of the stocks are listed as threatened 
species or endangered

[[Page 96233]]

species under the ESA (MMPA section 3(19)(C)). A TRP for the WA/OR/CA 
sablefish pot fishery and the affected marine mammal species or stocks 
(Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA 
stocks of humpback whale) is under development.
    On September 29, 2023, NMFS published a notice (Scoping for a 
Marine Mammal Take Reduction Team to Address Incidental Mortality and 
Serious Injury of Humpback Whale Stocks in the Pacific, 88 FR 67254) 
expressing NMFS' intent to establish a TRT to develop a TRP to address 
the incidental mortality and serious injury of the Central America/
Southern Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA stocks of 
humpback whales in the WA/OR/CA sablefish pot fishery and seeking input 
on whether other Category I or II fisheries that incidentally kill or 
seriously injure these stocks of humpback whales should be addressed by 
the Team. For more information, please see https://www.fisheries.noaa.gov/west-coast/marine-mammal-protection/west-coast-take-reduction-team.
    Accordingly, the requirement under MMPA section 118 to have TRPs in 
place or in development is satisfied (see determinations supporting the 
permit available on the internet at https://www.regulations.gov/docket/NOAA-NMFS-2024-0087).

Monitoring Program

    Under MMPA section 118(d), NMFS is to establish a program for 
monitoring incidental M/SI of marine mammals from commercial fishing 
operations. The WA/OR/CA sablefish pot fishery is monitored by a NMFS 
fishery observer program. Accordingly, the requirement under MMPA 
section 118 to have a monitoring program in place is satisfied.

Vessel Registration

    MMPA section 118(c) requires that vessels participating in Category 
I and II fisheries register to obtain an authorization to take marine 
mammals incidental to fishing activities. NMFS has integrated the MMPA 
registration process, implemented through the Marine Mammal 
Authorization Program, with existing state and Federal fishery license, 
registration, or permit systems for Category I and II fisheries on the 
LOF. Therefore, the requirement for vessel registration is satisfied.

Conclusions for Permit

    Based on the above evaluation for the WA/OR/CA sablefish pot 
fishery as it relates to the three requirements of MMPA section 
101(a)(5)(E), we are issuing an MMPA 101(a)(5)(E) permit to the WA/OR/
CA sablefish pot fishery to authorize the incidental take of ESA-listed 
species or stocks during commercial fishing operations. If, during the 
3-year authorization, there is a significant change in the information 
or conditions used to support 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 (NEPA) 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 the WA/OR/CA sablefish pot commercial fishery 
on ESA-listed marine mammals were analyzed in the appropriate ESA 
section 7 Biological Opinions on the commercial fishery (see https://www.fisheries.noaa.gov/s3/2024-11/BiOp-PCGF-BiOp-Final-MM-22NOV2024.pdf), and incidental take was exempted for those ESA-listed 
marine mammals for the WA/OR/CA sablefish pot fishery 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.
    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 Plans and their implementing regulations is required 
for the permit. Issuing the permit has no additional impact on the 
human environment or effects on threatened or endangered species beyond 
those analyzed in these documents.

Comments and Responses

    On September 10, 2024, 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) (89 FR 73377). The public comment 
period closed on October 10, 2024. NMFS received one comment letter in 
response to the request for comment on the proposed issuance of a 
permit to the WA/OR/CA sablefish pot commercial fishery and its 
underlying preliminary determinations. NMFS received a joint letter 
from Center for Biological Diversity, American Cetacean Society Oregon 
Chapter, Defenders of Wildlife, Earthjustice, Endangered Habitats 
League, Natural Resources Defense Council, Ocean Defenders Alliance, 
and Whale and Dolphin Conservation (CBD et al.) opposing issuance of 
the permit. NMFS' also received a joint letter from Defenders of 
Wildlife, Conservation Law Foundation, and Whale and Dolphin 
Conservation (Defenders of Wildlife et al.) that commented on NMFS' 
determination that the Category II Atlantic mixed species trap/pot 
fishery does not require a 101(a)(5)(E) permit. Based on Defenders of 
Wildlife et al.'s comment letter, NMFS is further evaluating the need 
for a 101(a)(5)(E) permit for the Atlantic mixed species trap/pot 
fishery and is not moving forward with the determination at this time. 
Only responses to significant comments pertaining to the proposed 
permit and preliminary determinations under MMPA section 101(a)(5)(E) 
for the WA/OR/CA sablefish pot commercial fishery are addressed below.
    Comment 1: CBD et al. asserts that not including unattributed M/SI 
of the Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-CA/
OR/WA stocks of humpback whales of humpback whales in the Tier 2 
analyses can lead to erroneous NIDs. They recommend NMFS use the best 
available science to apportion unattributed fishery-related M/SI and 
consider using a correction factor to account for unattributed M/SI.
    Response: As noted above, the most recent SARs (2022) for the 
Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA 
stocks of humpback whale include fishery-related M/SI not assigned to a 
specific commercial fishery. This unattributed fishery-related M/SI 
could

[[Page 96234]]

be from any number of commercial, recreational, or tribal fisheries, 
including the WA/OR/CA sablefish pot fishery. Because data are not 
currently available to assign the unattributed fishery-related M/SI to 
a specific commercial fishery, we did not include unattributed 
mortality in the calculations for NID Tier 2 analyses. NMFS is actively 
monitoring the WA/OR/CA sablefish pot fishery through a fishery 
observer program. If data and/or analyses become available to assign 
the unattributed fishery-related M/SI to specific commercial fisheries, 
NMFS will re-evaluate the NID and the permit for the WA/OR/CA sablefish 
pot fishery. In addition, if additional fishery-related M/SI is 
documented through the observer program that indicates additional M/SI 
of the Central America/Southern Mexico-CA/OR/WA or Mainland Mexico-CA/
OR/WA stocks of humpback whale, then NMFS will re-evaluate the NID and 
the permit.
    Comment 2: CBD et al. reiterates comments on the draft 2022 SAR 
that the maximum net productivity rate (Rmax) neither 
reflects the best available scientific information nor the guidance set 
forth in the Guidelines for Assessing Marine Mammal Stocks (GAMMS). CBD 
et al. recommends NMFS adopt either a stock-specific Rmax, 
similar to Curtis et al. (2022) or use the default value of 4 percent 
provided by the GAMMS.
    Response: The SAR generally represents the best available 
scientific information on the stock. We incorporate by reference NMFS' 
response to Comment 17 in the final 2022 SAR Federal Register notice 
(88 FR 54592, August 11, 2023). Curtis et al. estimated the observed 
growth rate of the stock. CBD et al. conflates the observed growth rate 
of a population and Rmax, which is the maximum theoretical 
or estimated growth rate that would be expected if the stock were at a 
small population size. Rmax is the only relevant growth rate 
for calculations of PBR and the NID thresholds.
    Comment 3: CBD et al. recommends NMFS use its discretion and 
deviate from NID made for the Central America/Southern Mexico-CA/OR/WA 
stock of humpback whales. They note that NMFS' Procedural Directive 02-
204-02 acknowledges there may be circumstances when NMFS may deviate 
from the NID if M/SI is slightly below or slightly above the negligible 
impact threshold(s). Since NITs for the Central America/
Southern Mexico-CA/OR/WA stock of humpback whale is only slightly 
higher than (0.02) than incidental M/SI in the WA/OR/CA sablefish pot 
fishery, NMFS should use its discretion and not make a NID.
    Response: NMFS Procedural Directive 02-204-02, Criteria for 
Determining Negligible Impact under MMPA section 101(a)(5)(E) states, 
``There may be circumstances, such as when the M/SI estimate is 
slightly below or slightly above the NIT threshold(s), where [NMFS] may 
deviate from the determination that would be dictated by strictly 
adhering to the NIT thresholds. Such deviations may be due to the 
consideration of additional factors affecting the likelihood or impact 
of the incidental M/SI such as data uncertainty and reliability, 
information on the population trend, and expected trends in commercial 
fisheries impacts including implemented or concurrently implemented 
management measures aimed at reducing M/SI below the threshold.'' NMFS 
considered this guidance in making the preliminary NID for the Central 
America/Southern Mexico-CA/OR/WA stock of humpback whales. NMFS is not 
aware of any specific bias in regards to the uncertainty and/or 
unreliability with the data on the population trend and expected trends 
in commercial fisheries impacts that would suggest the WA/OR/CA 
sablefish pot fishery would have a non-negligible impact on the Central 
America/Southern Mexico-CA/OR/WA stock of humpback whales. Therefore, 
NMFS is not deviating from the direct quantitative comparison of 
incidental M/SI to the NIT threshold in this case.
    Thus, based on the criteria outlined in the Procedural Directive, 
the most recent SARs, and the best available scientific information, 
NMFS has determined that the M/SI of Central America/Southern Mexico-
CA/OR/WA stock of humpback whale incidental to the WA/OR/CA sablefish 
pot fishery will have a negligible impact on this stock. If, during the 
3-year authorization, there is a significant change in the information 
or conditions used to support the NID, NMFS will re-evaluate whether to 
amend or modify the authorization, after notice and opportunity for 
public comment.
    Comment 4: CBD et al. claims NMFS has not developed a recovery plan 
for the ESA-listed humpback whale DPSs and should not rely on the 
recovery plan developed in 1991 for the global listing of humpback 
whales.
    Response: As noted, a recovery plan for the humpback whale species 
(global listing) was developed in 1991. 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). This recovery outline serves as an interim 
guidance document and, along with the existing species-wide recovery 
plan, directs recovery efforts, including recovery planning, for the 
Central America (Central America/Southern Mexico-CA/OR/WA stock) and 
Mexico (Mainland Mexico-CA/OR/WA stock) DPSs of humpback whales. Once 
finalized, the new recovery plan will replace the species-wide recovery 
plan that was published in 1991.
    Comment 5: CBD et al. expressed concern that the proposed permit 
did not include conditions or limitations to avoid incidental M/SI of 
humpback whales or other ESA-listed marine mammals. They note that MMPA 
section 101(a)(5)(E)(iv) allows the Secretary to suspend for a time 
certain or revoke a permit if it is determined that the conditions or 
limitations set forth in such permit are not being complied with. They 
continue that without conditions in the proposed permit, NMFS cannot 
use the authority granted under MMPA section 101(a)(5)(E)(iv). CBD et 
al. further recommends several permit conditions to include in the 
final permit.
    Response: NMFS disagrees. The MMPA requires NMFS to authorize the 
incidental take of ESA-listed marine mammals during commercial fishing 
operations provided it can make the following determinations: (1) the 
incidental 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 TRP has been developed or is being 
developed, a monitoring program is established, and vessels 
participating in the fishery are registered. MMPA section 
101(a)(5)(E)(ii) states if the Secretary determines these requirements 
are met, the Secretary shall issue an appropriate permit under section 
101(a)(5)(E). Section 101(a)(5)(E) does not require the Secretary, as 
delegated to NMFS, to prescribe permit conditions to ``avoid'' M/SI. 
Moreover, as discussed in the Take Reduction Plan section of this 
notice, NMFS is in the process of developing a TRP to address the 
incidental M/SI of the Central America/Southern Mexico-CA/OR/WA and 
Mainland Mexico-CA/OR/WA stocks of humpback whales in the WA/OR/CA 
sablefish pot fishery. Once convened, the Take Reduction Team will 
recommend various mitigation measures to reduce M/SI of the Central 
America/Southern Mexico-CA/OR/WA and

[[Page 96235]]

Mainland Mexico-CA/OR/WA stocks of humpback whales in the WA/OR/CA 
sablefish pot fishery pursuant to the goals of MMPA section 118(f)(2). 
The Take Reduction Team's recommended measures will be used to develop 
a TRP, which will include regulatory or voluntary measures to reduce 
incidental M/SI in the fishery.

References

Carretta, J.W., E.M. Oleson, K.A. Forney, M.M. Muto, D.W. Weller, A.R. 
Lang, J. Baker, B. Hanson, A.J. Orr, J. Barlow, J.E. Moore, and R.L. 
Brownell. 2023. U.S. Pacific Marine Mammal Stock Assessments: 2022. 
U.S. Department of Commerce. NOAA Technical Memorandum NMFS-SWFSC-684. 
409 p.
Curtis, K.A., J. Calambokidis, K. Audley, M.G. Castaneda, J. De Weerdt, 
A.J. Garc[iacute]a Ch[aacute]vez, F. Garita, P. Mart[iacute]nez-
Loustalot, J. D. Palacios-Alfaro, B. P[eacute]rez, E. Quintana-Rizzo, 
R. Ram[iacute]rez Barragan, N. Ransome, K. Rasmussen, J. Urb[aacute]n 
R., F. Villegas Zurita, K. Flynn, T. Cheeseman, J. Barlow, D. Steel and 
J. Moore. 2022. Abundance of Humpback Whales (Megaptera novaeangliae) 
Wintering in Central America and Southern Mexico from a One-Dimensional 
Spatial Capture-Recapture Model. U.S. Department of Commerce. NOAA 
Technical Memorandum NMFS-SWFSC-661. 35 p. https://doi.org/10.25923/9cq1-rx80.
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.

    Dated: November 26, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-28380 Filed 12-3-24; 8:45 am]
BILLING CODE 3510-22-P