[Federal Register Volume 65, Number 109 (Tuesday, June 6, 2000)]
[Notices]
[Pages 35904-35906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14201]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 050500F]


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

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

ACTION: Notice of proposal for issuance of permit; request for 
comments.

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SUMMARY: NMFS proposes to issue a permit for a period of three years, 
to authorize the incidental, but not intentional, taking of four stocks 
of threatened or endangered marine mammals by the California/Oregon 
drift gillnet fishery. The four stocks are: (1) Fin whale, California/
Oregon/Washington stock; (2) Humpback whale, California/Oregon/
Washington-Mexico stock; (3) Steller sea lion, eastern stock; and (4) 
Sperm whale, California/Oregon/Washington stock. This authorization is 
based on a determination that this incidental take will have a 
negligible impact on the affected marine mammal stocks.

DATES: Comments must be received at the appropriate address or fax 
number (see ADDRESSES), no later than 5 p.m. Pacific Standard Time, by 
July 21, 2000. Comments will not be accepted if submitted via e-mail or 
Internet.

ADDRESSES: Comments on this proposed permit and requests for reference 
materials should be sent to Tim Price, Protected Resources Division, 
National Marine Fisheries Service, Southwest Region, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802-4213. Comments may also be sent 
via facsimile (fax) to 562-980-4027.

FOR FURTHER INFORMATION CONTACT: Tim Price, NMFS, Southwest Region, 
Protected Resources Division, (562) 980-4029.

SUPPLEMENTARY INFORMATION: Section 101(a)(5)(E) of the Marine Mammal 
Protection Act (MMPA) requires the authorization of the incidental 
taking of individuals from marine mammal stocks listed as threatened or 
endangered under the ESA in the course of commercial fishing operations 
if NMFS determines that: (1) incidental mortality and serious injury 
will have a negligible impact on the affected species or stock; (2) a 
recovery plan has been developed or is being developed for such species 
or stock under the ESA; and (3) where required under section 118 of the 
MMPA, a monitoring program has been established, vessels engaged in 
such fisheries are registered in accordance with section 118 of the 
MMPA, and a take reduction plan has been developed or is being 
developed for such species or stock.
    On August 31, 1995 (60 FR 45399), NMFS issued permits for fisheries 
meeting the conditions under section 101(a)(5)(E) of the MMPA. At that 
time, NMFS did not issue a permit to the California/Oregon drift 
gillnet fishery for the California/Oregon/Washington-Mexico humpback 
whale stock or the California/Oregon/Washington sperm whale stock 
because NMFS was unable to determine that the estimated mortality and 
serious injury incidental to commercial fishing operations was 
negligible. In addition, in 1995, NMFS did not consider issuing a 
permit for the incidental mortality and serious injury of the 
California/Oregon/Washington fin whale stock because there had been no 
reported incidental takes at that time, and NMFS had no reason to 
anticipate any such takes. However, NMFS did determine that the 
mortality and serious injury incidental to commercial fishing 
operations was negligible for the eastern Steller sea lion stock and 
issued a permit for that stock. On December 30, 1998 (63 FR 71894), 
NMFS extended the permit until June 30, 1999. At that time, NMFS 
announced that it was reviewing the criteria for issuance of permits 
and evaluating whether the criteria were adequate or if changes should 
be made. No comments were received. On May 27, 1999 (64 FR 28800), NMFS 
proposed the issuance of permits for those fisheries that have 
negligible impacts on marine mammal stocks listed as threatened or 
endangered under the ESA for a period of 3 years. In addition, that 
document provided further guidance about the process for determining 
negligible impact. A permit for the mortality and serious injury of the 
Steller sea lion incidental to the California/Oregon drift gillnet 
fishing operations was also proposed. Based on new information, NMFS 
did not finalize the proposed permits.
    Since 1995, NMFS has gathered additional data on the status of 
listed marine mammals. Based on the more recent survey data and 
analyses, the Stock Assessment Reports contain revised estimates of 
potential biological removal (PBR) levels. PBR is defined in the MMPA 
as ``the maximum number of animals, not including natural mortalities, 
that may be removed from a stock while allowing that stock to reach or 
maintain its optimum sustainable population'' (16 U.S.C. 1362(20)). 
Also, since 1995, NMFS has developed and implemented the Pacific 
Offshore Cetacean Take Reduction Plan (the Plan) (62 FR 51805) for the 
California/Oregon drift gillnet fishery. The initial goal of a take 
reduction plan is to reduce marine mammal bycatch in the fishery to 
levels below PBR for all stocks. Since the implementation of the Plan, 
overall cetacean mortality in this fishery has been reduced by 70 
percent. For these reasons, NMFS is re-evaluating whether issuance of a 
permit under section 101(a)(5)(E) of the MMPA for the California/Oregon 
drift gillnet fishery is appropriate.

Process and Criteria for Issuing Permits

    Section 101(a)(5)(E) of the Marine Mammal Protection Act (MMPA) 
requires the authorization of the incidental taking of individuals from 
marine mammal stocks listed as threatened or endangered under the ESA 
in the course of commercial fishing operations if NMFS determines, 
among other criteria, that incidental mortality and serious injury will 
have a negligible impact on the affected species or stock. ``Negligible 
impact'' as defined in 50 CFR 216.103 and as applies here is, ``an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''

[[Page 35905]]

    In 1990, the Marine Mammal Commission (MMC) submitted scientific 
guidelines to NMFS to govern the incidental taking of marine mammals in 
the course of commercial fishing operations. In those guidelines, the 
MMC recommended NMFS determine negligible impact if the mortality and 
serious injury incidental to commercial fishing operations would cause 
no more than a 10 percent increase in the time to recovery. NMFS 
incorporated the MMC's recommendation of negligible impact criteria 
into the 1992 legislative proposal. Participants at NMFS' 1994 PBR 
workshop agreed, and determined that authorized levels of human-related 
mortality should increase recovery time of endangered stocks by no more 
than 10 percent. Therefore, a default recovery factor of 0.1 was chosen 
to use in the PBR equation for endangered stocks of marine mammals 
(Barlow et al., 1995).
    On August 31, 1995 (60 FR 45399), NMFS issued permits for fisheries 
meeting the conditions under section 101(a)(5)(E) of the MMPA. As an 
interim measure, NMFS considered a total annual serious injury and 
mortality of not more than 10 percent of a stock's PBR level to be 
negligible. In 1999, NMFS published a notice of proposal to issue 
permits under section 101(a)(5)(E) of the MMPA. In the 1999 proposal, 
NMFS again applied a serious injury and mortality of not more than 10 
percent of a stock's PBR level as the starting point for negligible 
impact determinations. However, NMFS recognized that a strict 
application of 10 percent of PBR was not appropriate in some cases and 
that such a criterion would not be the only factor in evaluating 
whether a particular level of take would be considered negligible.
    Because population abundance and fishery-related mortality 
information have varying degrees of uncertainty, NMFS considers factors 
such as population trends and reliability of abundance and mortality 
estimates in calculating PBR. When calculating a PBR for species listed 
as endangered under the ESA, NMFS uses a value of 0.1 for the recovery 
factor based on the rationale that this would not cause more than a 10 
percent increase in the time to recovery (Barlow et al., 1995). Using a 
PBR containing a recovery factor of 0.1 would allow a large portion of 
the stock's annual net production to be used for recovery rather than 
being authorized for removal due to incidental mortality. Therefore, 
when incidental mortality and serious injury was below the stock's PBR, 
such mortality and serious injury would have no more than a negligible 
impact on the stock.
    In 1995, NMFS limited a determination of negligible impact only to 
those cases in which mortality and serious injury incidental to 
commercial fishing operations did not exceed 10 percent of any stock's 
PBR. When that criterion was applied to the cases in which the PBR 
equation contained a recovery factor of 0.1, the result was a situation 
where authorized mortality would cause only a small portion (10 
percent) of the mortality that would cause a negligible impact 
according to the MMC's recommendation. Therefore, the standard was too 
restrictive for those fisheries that take endangered marine mammals 
with a recovery factor of 0.1 in the PBR calculation. Consequently, in 
making a negligible impact determination, NMFS has decided to use case-
specific analyses in those cases where incidental mortality and serious 
injury exceeded 10 percent of an endangered stock's PBR in determining 
whether the estimated level of mortality or serious injury would delay 
recovery by more than 10 percent. In the case of the 4 stocks of marine 
mammals addressed by this permit, NMFS evaluated whether the estimated 
level of mortality and serious injury would likely increase the 
recovery time by more than 10 percent. Takes below this level will be 
considered negligible.

Summary of Findings

    NMFS has evaluated the best available information for stocks listed 
as threatened or endangered under the ESA and has determined on a 
stock-by-stock basis, whether the mortality and serious injury (using 
3-year averages 1997, 1998, 1999) incidental to the California/Oregon 
drift gillnet fishery that interacts with such stocks is having a 
negligible impact on such stocks (NMFS, 2000). Based on this 
assessment, NMFS concludes that the estimated mortality and serious 
injury caused by the California/Oregon drift gillnet fishery would 
cause no more than a 10-percent increase in the time to recovery for 
each of the four stocks of marine mammals addressed by this permit and 
is, therefore, negligible.
    These stocks were then reviewed to confirm that: (1) a recovery 
plan has been developed or is being developed, and (2) where required 
under section 118 of the MMPA, a monitoring program has been 
established, vessels engaged in such fisheries are registered, and a 
take reduction plan has been, or is being, developed.
    For the following stocks with documented evidence of fishery-
related interactions, NMFS has determined that the mortality and 
serious injury incidental to the California/Oregon drift gillnet 
fishery will have a negligible impact and proposes to issue a permit 
for incidental takes of:
    (1) Fin whale, California/Oregon/Washington stock;
    (2) Humpback whale, California/Oregon/Washington-Mexico stock;
    (3) Steller sea lion, eastern stock; and
    (4) Sperm whale, California/Oregon/Washington stock.
    A stock-by-stock summary of the negligible impact determination 
follows.
    Fin whale, California/Oregon/Washington stock: The PBR for this 
stock is 2.1 whales per year. After the 1997 implementation of the 
Plan, overall cetacean entanglement rates in the California/Oregon 
drift gillnet fishery dropped considerably. Using a 3-year (1997-1999) 
average, the annual mean mortality and serious injury rate from the 
California/Oregon drift gillnet fishery is estimated to be as low as 
1.7 or as high as 2.3, depending on the methodology used. However, 
during the past 10 years, only one fin whale has been observed taken in 
this fishery, indicating a remote likelihood of a fin whale take in the 
California/Oregon drift gillnet fishery. When the mortality and serious 
injury rate is calculated from a more broad-based set of data than the 
3-year period under the Plan, estimated mortality is low enough that it 
could be considered a negligible impact.
    Humpback whale, California/Oregon/Washington-Mexico stock: The PBR 
level for this stock is 1.7 whales per year. Using a 3-year average 
(1997-1999), the mean annual mortality and serious injury rate from the 
California/Oregon drift gillnet fishery is estimated to be 0.0 humpback 
whales. One observed humpback whale entanglement in 1999 was released 
alive without any trailing gear and was not considered a serious injury 
or mortality. Since the beginning of the observer program in 1990, 
there have been no reported mortalities or serious injuries of humpback 
whales.
    Steller sea lion, eastern stock: The PBR level for this stock is 
1,368 animals per year. Fishery observers monitored the California/
Oregon drift gillnet fishery between 1990 and 1999. In both 1992 and 
1994, one Steller sea lion mortality was observed incidental to this 
fishery. Using a 3-year average (1997-1999), the mean annual mortality 
and serious injury rate from the California/Oregon drift gillnet 
fishery is estimated to be 0.0 animals for the California/Oregon drift 
gillnet fishery.
    Sperm whale, California/Oregon/Washington stock: The PBR level for 
this stock is 2.0 whales per year. Using a 3-year average (1997-1999), 
the mean

[[Page 35906]]

annual mortality and serious injury rate from the California/Oregon 
drift gillnet fishery is estimated to be 1.7 sperm whales. In 1998, one 
sperm whale was observed killed in a net that was not in compliance 
with the Plan. The Pacific Offshore Cetacean Take Reduction Team (The 
Team) and the Pacific Scientific Review Group both recommended no 
further strategies to reduce sperm whale entanglement be taken until 
the effectiveness of pingers is better understood. At the 
recommendation of The Team, NMFS conducted workshops to educate vessel 
operators on the need to use the full complement of pingers required by 
the Plan. NMFS enforcement also trained the U.S. Coast Guard about the 
requirements of the Plan and requested their assistance with at-sea 
enforcement.
    NMFS prepared an Environmental Assessment (EA) on the final rule to 
implement the Plan (62 FR 51805). This action falls within the scope of 
that EA and the environmental consequences described in that action, 
and there have been no changes to the fishery subsequent to issuing the 
EA. Therefore, this action qualifies for a categorical exclusion under 
section 5.05b of NOAA Administrative Order 216-6 because a prior NEPA 
analysis for the same action demonstrated that the action will not have 
significant impacts on the quality of the human environment.

Issuance of Permits

    Based on requirements of section 101(a)(5)(E) of the MMPA, NMFS 
proposes to issue a permit to allow the incidental, but not 
intentional, taking of four stocks of endangered or threatened marine 
mammals to the California/Oregon drift gillnet fishery: (1) Fin whale, 
California/Oregon/Washington stock; (2) Humpback whale, California/
Oregon/Washington-Mexico stock; (3) Steller sea lion, eastern stock; 
and (4) Sperm whale, California/Oregon/Washington stock. These permits 
may be suspended or revoked if the level of take is likely to result in 
an impact that is more than negligible.

References

    Barlow, J., S. Swartz, T. Eagle, and P. Wade. 1995. U.S. Marine 
mammal stock assessments: guidelines for preparation, background, and a 
summary of the 1995 assessments. U.S. Department of Commerce, NOAA 
Technical Memorandum NMFS-SWFSC-219. 162 p.
    National Marine Fisheries Service. 2000. Assessment for issuing a 
permit under section 101(a)(5)(E) of the Marine Mammal Protection Act 
to the California/Oregon Drift Gillnet Fishery. Southwest Region, 
Protected Resources Division.
    Wade, P.R. 1998. Calculating limits to the allowable human-caused 
mortality of cetaceans and pinnipeds. (Mar. Mamm. Sci., 1491): 1-37.

    Dated: May 31, 2000.
Donald R. Knowles,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 00-14201 Filed 6-5-00; 8:45 am]
BILLING CODE 3510-22-F