[Federal Register Volume 72, Number 207 (Friday, October 26, 2007)]
[Notices]
[Pages 60814-60822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21091]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 062006A]
RIN 0648-XD10


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

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

ACTION:  Notice.

-----------------------------------------------------------------------

SUMMARY:  In accordance with the Marine Mammal Protection Act, NMFS 
hereby issues a permit for a period of 3 years to authorize the 
incidental, but not intentional, taking of three stocks of endangered 
marine mammals by the California/Oregon (CA/OR) drift gillnet fishery. 
The three stocks are: fin whale, California/Oregon/Washington (CA/OR/
WA) stock; humpback whale, Eastern North Pacific (ENP) stock; and sperm 
whale, CA/OR/WA stock. This authorization is based in part on a 
determination that this incidental take will have a negligible impact 
on the affected marine mammal stocks.

DATES:  This permit is effective for a 3-year period beginning October 
26, 2007.

ADDRESSES:  Copies of the reference materials may be obtained from 
Protected Resources Division, NMFS, Southwest Region, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802-4213. Attention: Christina 
Fahy.

FOR FURTHER INFORMATION CONTACT:  Monica DeAngelis, NMFS, Southwest 
Region, Protected Resources Division, (562) 980-3232 or Christina Fahy, 
(562) 980-4023.

SUPPLEMENTARY INFORMATION: Pursuant to the Marine Mammal Protection Act 
(MMPA) (16 U.S.C. 1361, et seq.), NMFS is issuing a permit to authorize 
the taking of three stocks of endangered marine mammals (fin whale, 
California/Oregon/Washington (CA/OR/WA) stock; humpback whale, Eastern 
North Pacific (ENP) stock; and sperm whale, CA/OR/WA stock) incidental 
to the CA/OR drift gillnet fishery. This fishery is the only Category I 
or II fishery with a recent history of taking these three stocks of 
marine mammals, and in recent history this fishery has taken no other 
stocks of threatened or endangered marine mammals. Therefore, only this 
fishery and these three stocks of marine mammals are affected by this 
permit.
    MMPA section 101(a)(5)(E) requires NMFS to allow the taking of 
marine mammals from species or stocks listed as threatened or 
endangered under the Endangered Species Act (ESA) (16 U.S.C. 1531 et 
seq.) incidental to 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.
    MMPA section 101(a)(5)(E)(ii) requires NMFS to publish a list of 
the fisheries for which the necessary determinations have been made for 
the taking of threatened or endangered marine mammals incidental to the 
fisheries' operations. This list of fisheries currently contains the 
three fisheries that are the subject of this notice and identified in 
Table 1. The MMPA also requires NMFS, upon such determinations, to 
issue a permit to those fisheries in which vessels are required to be 
registered (Category I and II fisheries).
    The 2007 List of Fisheries indicates that two Category III 
fisheries (CA lobster, prawn, shrimp, rock crab, fish pot and CA/OR/WA 
crab pot) have a history of taking humpback whales. NMFS is currently 
in the process of characterizing the trap and pot fisheries off the 
west coast of the United States and assessing the impact, based on the 
available information, to determine if reclassifying these fisheries is 
warranted. As provided by the MMPA, the taking of this stock of 
humpback whales would be authorized, if it were to occur and the owner 
or master of the vessel reported the take, as required by MMPA section 
118(e). MMPA section 101(a)(5)(E)(ii) states that (1) permits are not 
required for Category III fisheries because participants are not 
required to register their vessels and (2) that after an appropriate 
negligible impact determination is completed, taking threatened or 
endangered marine mammals would not be a violation, so long as any 
injury or mortality is reported in accordance with MMPA section 118.

History of Applying Negligible Impact in Fisheries

    Among the requirements of MMPA section 101(a)(5)(E) to issue a 
permit to take ESA-listed marine mammals incidental to commercial 
fishing, NMFS must determine whether the incidental taking from 
commercial fisheries would have a negligible impact on the affected 
stock or stocks of threatened or endangered marine mammals. Negligible 
impact determinations are required only in MMPA section 101(a)(5), and 
they are used in the procedures to authorize the take of small numbers 
of any stock of marine mammals incidental to activities other than 
commercial fishing (termed the ``Small Take Program'') and to permit 
the take of threatened or endangered marine mammals incidental to 
commercial fishing operations. That is, within the MMPA's provisions 
for the Small Take Program, NMFS must determine if the taking (by 
harassment, injury, and mortality) incidental to specified activities 
will have a negligible impact on the affected stocks of marine mammals 
(MMPA sections 101(a)(5)(A)(I) and 101(A)(5)(D)(i)(I)). For permitting 
the take of threatened or endangered marine mammals incidental to 
fishing operations, NMFS must determine if mortality and serious injury 
incidental to commercial fisheries will have a negligible impact on the 
affected species or stocks of

[[Page 60815]]

marine mammals (MMPA section 101(a)(5)(E)(i)(I)).
    NMFS has implemented these programs through regulations and has 
relied upon qualitative and quantitative approaches to determine the 
levels of taking that would result in a negligible impact to affected 
stocks of marine mammals. The quantitative approach is more appropriate 
for serious injury and mortality than for non-lethal takes because 
mortality and serious injury are considered removals from the 
population and can be evaluated by well-documented models of population 
dynamics.
    The MMPA does not define ``negligible impact.'' There is, however, 
a reference to negligible impact in the House of Representatives 
committee report for the MMPA Amendments of 1981. That report states, 
``'negligible' is intended to mean an impact which is able to be 
disregarded. In this regard, the committee notes that Webster's 
Dictionary defines the term 'negligible' to mean 'so small or 
unimportant or of so little consequence as to warrant little or no 
attention.''' (House of Representatives, Report 97-228, September 16, 
1981). NMFS defined negligible impact in regulations for the Small Take 
Program (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.'' This qualitative definition 
indicates that detectable population-level effects are important 
features in negligible impact determinations.
    This qualitative definition of negligible impact was the standard 
NMFS used to implement the Small Take Program from its inception in 
1981 through 1994, when additional amendments to the MMPA required a 
more quantitative approach for assessing what level of removals from a 
population stock of marine mammals could be considered a negligible 
impact. It remains the only formal definition of negligible impact for 
implementing the MMPA, and its use was expanded in 1995 (see 50 CFR 
229.2) to include determinations related to incidental taking from 
commercial fishing.
    The MMPA Amendments of 1994 were enacted primarily to establish a 
regime to govern the taking of marine mammals incidental to commercial 
fishing operations, including MMPA section 101(a)(5)(E). These 
amendments were based in large part on a legislative proposal NMFS 
submitted to Congress in 1992. This legislative proposal was, in turn, 
based in large part on recommended guidelines, required by MMPA section 
114, from the Marine Mammal Commission (Commission) in early 1990 
(Recommended Guidelines to Govern the Incidental Taking of Marine 
Mammals in the Course of Commercial Fishing Operations after October 
1993, transmitted to NMFS on July 12, 1990). In these guidelines, the 
Commission recommended, among five other characteristics of a mechanism 
to govern the take of threatened and endangered marine mammals 
incidental to fishing, `` the authorized level of take would have a 
negligible effect on population size and recovery time...'' The 
Commission provided initial quantitative guidance on negligible effect 
on population size and recovery time as the following: ``an effect that 
(a) will not cause or contribute to a further decline in distribution 
or size lasting more than twelve months; and/or (b) will not cause 
greater than a 10-percent increase in the best available estimate of 
the time it will take the affected species or population to recover to 
its maximum net productivity level.''
    The first of the Commission's quantitative approaches is more 
appropriate for an activity that would have a relatively short duration 
relative to the life expectancy of the affected stocks of marine 
mammals and, in the case of commercial fishing, for the remote 
likelihood of serious injury or mortality by a Category III fishery. 
Where incidental mortality or serious injury may occur on a more 
regular basis, as expected for interactions with Category I or II 
commercial fisheries, the delay-in-recovery standard would be more 
appropriate.
    NMFS has consistently used the Commission's delay-in-recovery 
guideline in distinguishing negligible from non-negligible impact. To 
apply this criterion, however, NMFS had to estimate what annual levels 
of removal would cause no more than a 10 percent delay in time to 
recovery. Such an effort was initiated at a NMFS-convened workshop 
(June 1994) to develop guidelines for preparing marine mammal stock 
assessment reports. Among the many items considered at that workshop, 
participants agreed that recovery factors (RF) used in the calculation 
of Potential Biological Removal (PBR) for each stock of marine mammals 
should compensate for uncertainty and possible unknown estimation 
errors. In discussing the RF for stocks of endangered species of marine 
mammals, participants noted that a RF of 0.1 would preserve 90 percent 
of net annual production for recovery of the stock, limiting the 
proportion of net annual production of the stock available for 
authorization of mortality or serious injury incidental to human-caused 
mortality. Participants also stated that reserving such a high 
proportion of net annual production of endangered species was 
appropriate to `` allow stocks to recover at near maximum rates, and to 
minimize the probability that naturally occurring stochastic mortality 
would result in extinction of the stock.'' (Barlow et al., 1995). 
Workshop participants also noted, ``authorized levels of human-related 
mortality should increase recovery time of endangered stocks by no more 
than 10 percent (consistent with the goal stated in NMFS legislative 
proposal).'' (Barlow et al., 1995). Consequently, participants at the 
workshop recommended, and NMFS accepted after public review and 
comment, that mortality and serious injury remaining at or below PBR 
for an endangered stock (with 0.1 as the RF in the PBR calculation) 
would have an insignificant or negligible impact on the affected stock.
    In applying the negligible impact criterion to determinations made 
initially under the MMPA Amendments of 1994, NMFS understood that total 
human-caused mortality and serious injury limited to a level no greater 
than a PBR calculated with RF of 0.1 would be negligible; however, MMPA 
section 101(a)(5)(E) required a determination related to the impact of 
mortality and serious injury incidental to commercial fishing rather 
than incidental to all human activities. Accordingly, NMFS proposed to 
use, and subsequently used, 10 percent of any stock's PBR as the upper 
limit of mortality and serious injury incidental to commercial fishing 
in making the first negligible impact determinations (60 FR 31666, June 
16, 1995 (proposed) and 65 FR 45399, August 31, 1995 (interim)). A 
rationale supporting this approach was that a negligible (or 
insignificant) level of fishery-related mortality and serious injury 
should be only a small portion of the maximum level of mortality and 
serious injury a stock could sustain. NMFS noted that the threshold 
value was a starting point; that is, the criterion should not be used 
rigidly but should produce the first estimate, which, in turn, could be 
modified on a case-by-case basis according to existing information. 
Although 10 percent of PBR was used in 1995 in issuing permits to 
fisheries under MMPA section 101(a)(5)(E), NMFS later became concerned 
that 10 percent of PBR may result in a much smaller number than the 10 
percent-delay criterion would require (Wade and Angliss, 1997).

[[Page 60816]]

    Later, Wade (1998) summarized the robustness trials conducted in 
support of the PBR approach for marine mammal conservation, including 
an aspect that was missing from simulations conducted for the NMFS-
convened workshop in 1994: exploring the maximum level of annual 
removals from a population that would result in no more than a 10-
percent delay in the time a population would need for recovery to its 
Maximum Net Productivity Level (MNPL). Wade (1998) found that an upper 
limit of annual removals equal to the value of a PBR calculation with a 
RF of 0.15 would allow 95 percent of simulations to equilibrate at or 
above MNPL, which was an initial step in quantifying the maximum number 
of annual removals resulting in a negligible impact. However, in some 
applications the negligible impact standard must also address a 
performance criterion for marine mammal stocks that are not necessarily 
depleted. Wade (1998), therefore, reported that an upper limit of 
annual mortality limited to a value equal to a PBR calculation with a 
RF of 0.1 would allow 95 percent of simulations to equilibrate within 
95 percent of the carrying capacity of the affected stock of marine 
mammals.
    Wade's (1998) performance testing included removals to the 
threshold level for a period of 100 years and evaluated the robustness 
of each case over a range of bias or uncertainty in productivity rates, 
abundance estimation, and mortality estimation. Thus, the limits are 
appropriate for use on long-term average removals and do not indicate 
that a short-term level of removal exceeding the threshold would delay 
time to recovery by more than 10 percent.
    In 1998, NMFS published a notice (63 FR 71894, December 30, 1998) 
advising the public that NMFS was extending the 3-year permit issued to 
fisheries in 1995 to authorize the taking of threatened or endangered 
marine mammals. This notice also informed the public that NMFS 
considered the 6-month extension of the permit an opportunity to review 
existing criteria for the issuance of permits and to address issues 
that have arisen since the permits were first issued. NMFS solicited 
public comments to develop alternatives to 10 percent of PBR as a 
criterion for determining negligible impact; however, none were 
received.
    Having received no comments upon which to develop alternatives for 
determining negligible impact, NMFS published a notice proposing to 
issue permits under MMPA section 101(a)(5)(E) in 1999 (64 FR 28800, May 
27, 1999). The notice contained a statement that NMFS, through internal 
deliberation, had adopted the following criteria for making negligible 
impact determinations for such permits:
    (1) The threshold for initial determination will remain at 0.1 PBR. 
If total human-related serious injuries and mortalities are less than 
0.1 PBR, all fisheries may be permitted.
    (2) If total human-related serious injuries and mortalities are 
greater than PBR, and fisheries-related mortality is less than 0.1 PBR, 
individual fisheries may be permitted if management measures are being 
taken to address non-fisheries-related serious injuries and 
mortalities. When fisheries-related serious injury and mortality is 
less than 10 percent of the total, the appropriate management action is 
to address components that account for the major portion of the total.
    (3) If total fisheries-related serious injuries and mortalities are 
greater than 0.1 PBR and less than PBR and the population is stable or 
increasing, fisheries may be permitted subject to individual review and 
certainty of data. Although the PBR level has been set up as a 
conservative standard that will allow recovery of a stock, there are 
reasons for individually reviewing fisheries if serious injuries and 
mortalities are above the threshold level. First, increases in 
permitted serious injuries and mortalities should be carefully 
considered. Second, as serious injuries and mortalities approach the 
PBR level, uncertainties in elements such as population size, 
reproductive rates, and fisheries-related mortalities become more 
important.
    (4) If the population abundance of a stock is declining, the 
threshold level of 0.1 PBR will continue to be used. If a population is 
declining despite limitations on human-related serious injuries and 
mortalities below the PBR level, a more conservative criterion is 
warranted.
    (5) If total fisheries-related serious injuries and mortalities are 
greater than PBR, permits may not be issued.
    Criterion 1 is the starting point for analyses. If this criterion 
is satisfied, the analysis would be concluded. The remaining criteria 
describe alternatives under certain conditions, such as fishery 
mortality below the negligible threshold but other human-caused 
mortality above the threshold, or fishery and other human-caused 
mortality between the negligible threshold and PBR for a stock that is 
increasing or stable. If criterion 1 is not satisfied, NMFS may use one 
of the other criteria, as appropriate.
    In 2000, NMFS issued a permit to the CA/OR drift gillnet fishery to 
authorize the taking of threatened and endangered marine mammals 
incidental to its operation (65 FR 64670, October 30, 2000). For that 
permit, as for the current permit, NMFS used the criteria adopted in 
1999 to distinguish between negligible and non-negligible impact on 
affected stocks of marine mammals.

Current Permit

    Observer data, stranding records, and marine mammal reporting forms 
indicate the CA/OR drift gillnet fishery is the only Category I or II 
commercial fishery that takes the CA/OR/WA stocks of fin and sperm 
whales, and the ENP stock of humpback whales. However, based on 
stranding records, pot fisheries that operate in California (currently 
listed as Category III fisheries), may also take humpback whales.
    On July 28, 2006 (71 FR 42809), NMFS proposed the issuance of a 
permit under MMPA section 101(a)(5)(E), for a period of 3 years, to 
authorize the incidental, but not intentional, taking of three stocks 
of threatened or endangered marine mammals (CA/OR/WA stocks of fin and 
sperm whales and the ENP stock of humpback whales) by the CA/OR drift 
gillnet fishery. That notice summarized documentation that: (1) a 
recovery plan has been developed or is being developed for the affected 
stocks, 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.
    The proposed permit indicated that recovery plans had been 
developed (humpback whales) or were being developed (fin and sperm 
whales). These recovery plans are available on the internet at the 
following address: http://www.nmfs.noaa.gov/pr/recovery/plans.htm. 
Accordingly, NMFS determined that recovery plans for the affected 
stocks are completed or being developed.
    Vessels active in the fishery are registered under the MMPA each 
year, and an observer program has been in place in the CA/OR drift 
gillnet fishery since 1990 (see Description of the Fishery; Carretta et 
al., 2006, Appendix 1. Descriptions of U.S. Commercial Fisheries) . 
Since the Pacific Offshore Cetacean Take Reduction Plan (POCTRP) was 
implemented in 1997 (62 FR 51805, October 3, 1997), observer coverage 
has been sufficient for reliable estimates of marine mammals mortality 
and serious injury. No other Category I or II fisheries, which are the 
only

[[Page 60817]]

commercial fisheries required to register, carry observers, or be 
subject to take reduction plans, have a history of taking these stocks 
of endangered whales. Accordingly, NMFS determined that, as required by 
MMPA section 118, vessels were registered under the MMPA, a monitoring 
program was in place, and a take reduction plan was in place for these 
stocks. Thus, all conditions for issuing a permit under MMPA section 
101(a)(5)(E) are fulfilled.
    In 2005, NMFS received an application for an Exempted Fishing 
Permit (EFP) for drift gillnet fishing from the Federation of 
Independent Seafood Harvesters to reopen the area closed in 2001 
(described below) to drift gillnet fishing. The Pacific Fishery 
Management Council (PFMC) reviewed the EFP and facilitated the 
development of the permit conditions. These included: drift gillnet EFP 
fishing effort in the closure area would be limited to no more than 300 
sets, and 100 percent observer coverage would be required, and up to 30 
vessels would be eligible to participate. The permit included limits on 
the number of protected species that could be incidentally entangled in 
the drift gillnet EFP fishery. The PFMC recommended that NMFS issue the 
2006 permit, and NMFS formally began review of the EFP, which included 
consultation under the ESA, to consider the impacts on ESA-listed 
species. The proposed 2006 EFP recommended by the PFMC for issuance was 
not issued. However, the PFMC recommended at their April 2007 meeting 
that NMFS issue this EFP in 2007 with the same terms and conditions as 
originally recommended for the 2006 application. On June 5, 2007, in a 
letter from NMFS to the PFMC, NMFS determined that it would not issue 
the permit for the proposed 2007 drift gillnet EFP, due to the 
potential for leatherback sea turtle mortalities that would result if 
the EFP were approved. If NMFS considers the issuance of a DGN EFP 
during the three years of this 101(a)(5)(E) permit, taking of listed 
marine mammal stocks considered under this permit would be covered 
under the existing analysis. The data analyzed in the negligible impact 
determination for this permit included years prior to 2001 when the 
currently closed area (requested to be opened under the EFP in 2006 and 
2007) was open to fishing. Therefore, any taking of these stocks of 
marine mammals incidental to fishing under a similarly issued EFP (if 
it is granted) would be authorized by this permit. All drift gillnet 
fishing under an EFP would be subject to applicable requirements under 
the HMS FMP and would have to comply with the POCTRP. In addition, any 
proposed EFP application would be subjected to thorough review and 
analysis of impacts, in order to satisfy all mandated requirements 
under the ESA and the National Environmental Policy Act (NEPA).

Description of the Fishery

    The CA/OR drift gillnet fishery operates primarily outside of state 
waters to about 150 nm offshore ranging from the U.S. Mexico border in 
the south to northward of the Columbia River, depending on sea surface 
temperature conditions. The 2007 List of Fisheries (72 FR 14466, March 
28, 2007) estimated that there were 85 vessels in the fishery. This 
estimate of the number of vessels in the fishery is a historical 
reference based upon the number of vessels that indicated intent to 
participate in the fishery and may not be an accurate estimate of the 
number of vessels actively engaged in fishing in any given year. The 
drift gillnet fishery is a limited entry program, managed with gear, 
seasons, and area closures. In 2005, there were 90 fishing permits 
issued, and 42 vessels actively fished under their permit (Pacific 
Fishery Management Council 2006). More detailed information on the 
operation of this fishery is included in Appendix 2 of the final 
negligible impact determination associated with this permit.
    Under California State regulations, the fishery is restricted to 
waters outside 200 nm from February 1 through April 30, and outside 75 
nm from May 1 through August 14; the fishery is allowed to fish inside 
75 nm from August 15 though January 31. In the portion of the U.S. EEZ 
off the Oregon coast, the fishery is closed throughout the year east of 
a line approximating 1000 fathoms. Because of these restrictions, 
vessels are not active during February, March, and April, and very 
little fishing effort occurs during the months of May, June, and July 
because CA/OR drift gillnet vessels targeting swordfish tend to set on 
warm ocean water temperature breaks, which do not appear along the 
California coast until late summer.
    The fishery has been conducted under state and/or Federal 
regulations since MMPA section 118 was enacted. When the List of 
Fisheries under MMPA section 118 was first began, the CA/OR drift 
gillnet fishery was state-regulated. As a result, when NMFS promulgated 
regulations implementing the POCTRP (62 FR 51805, October 3, 1997), 
there were no other Federal actions associated with the fishery. For 
initial implementation of the take reduction plan, NMFS completed a 
consultation under ESA section 7 in September, 1997 (no jeopardy 
determination) and completed an Environmental Assessment under NEPA in 
August 1997. The regulatory requirements in the POCTRP included the use 
of extenders so that the upper part of the gillnet was 36 ft (10.9 m) 
below the surface and the use of acoustic warning devices (pingers) on 
nets.
    As part of reasonable and prudent alternatives contained in a 2000 
ESA consultation on the drift gillnet fishery, in 2001, a seasonal (15 
August-15 November) area closure was implemented in the drift gillnet 
fishery north of Point Conception, to protect leatherback turtles that 
feed in the area and were observed entangled in previous fishing 
seasons. Additional seasonal/area closures in southern California have 
been established in the drift gillnet fishery to protect loggerhead 
turtles during declared or predicted El Nino years.
    On February 4, 2004, NMFS partially approved the HMS FMP prepared 
by the PFMC. This FMP includes commercial fisheries using various gear 
types to target highly migratory species; however, only the drift 
gillnet fishery has a history of taking threatened or endangered marine 
mammals. Implementing regulations for the approved portions of the FMP 
were published on April 7, 2004 (69 FR 18444). The preamble to these 
regulations noted that an Environmental Impact Statement (EIS) had been 
prepared and filed with the Environmental Protection Agency and that a 
formal consultation under the ESA had been completed. These documents 
analyzed the effects of the fishery on the human environment and on 
threatened or endangered species.
    The HMS FMP includes a permit requirement for vessels or vessel 
owners. Participants in the CA/OR drift gillnet fishery are also 
required to have a valid permit issued annually by the California 
Department of Fish and Game or Oregon Department of Fish and Wildlife, 
as applicable, depending upon where fishing occurs and landings are 
made. In accordance with MMPA section 118(c), only those vessels in the 
CA/OR drift gillnet fishery that have registered for a Marine Mammal 
Authorization Program (MMAP) are authorized to take marine mammals 
incidental to their fishing operations. Vessels holding this permit 
must comply with the POCTRP and implementing regulations.

[[Page 60818]]

Current Negligible Impact Determination

    NMFS has evaluated the best available information for the three 
stocks listed as threatened or endangered under the ESA addressed by 
this permit and has determined (using data from 1998 through 2005 and 
computing a yearly average), on a stock-by-stock basis, whether the 
mortality and serious injury incidental to the CA/OR drift gillnet 
fishery is having a negligible impact on such stocks (NMFS 2006). Based 
on this assessment, using the 1999 criteria (see History of Applying 
Negligible Impact in Fisheries) for the three stocks of marine mammals 
addressed by this permit, NMFS concludes that the estimated mortality 
and serious injury incidental to commercial fishing will have a 
negligible impact on these stocks of fin, humpback, and sperm whales. A 
stock-by-stock summary of the negligible impact determination follows.

Fin Whale, CA/OR/WA Stock

    The annual average serious injury and mortality to the CA/OR/WA 
stock of fin whales from all human-caused sources, including commercial 
fisheries (0.63 animals) plus ship strikes (0.88 animals), is 1.51 
animals, which is 10 percent of this stock's PBR. Although criterion 1 
states the threshold is less than rather than equal to 10 percent of 
PBR, there are circumstances that prompt NMFS to determine that this 
minor deviation from the guidelines is reasonable. The abundance of 
this stock is increasing, the PBR calculation uses a recovery factor of 
0.1, and the serious injury and mortality is far below a level that 
would cause more than a 10 percent delay in recovery. During the past 
16 years, only one fin whale has been observed taken by the CA/OR drift 
gillnet fishery (1999; which is after the implementation of the POCTRP 
and prior to the 2001 closure off California and Oregon), indicating 
that the likelihood that a fin whale would be taken in the CA/OR drift 
gillnet fishery is very low. NMFS estimates that total human-caused 
mortality and serious injury of fin whales will be less than 10 percent 
of the PBR of this stock. Therefore, mortality and serious injury of 
fin whales incidental to commercial fishing will have a negligible 
impact on the CA/OR/WA stock of fin whales under criterion 1.

Humpback Whale, ENP Stock

    The annual average serious injury and mortality to the ENP stock of 
humpback whales from all human-caused sources, including commercial 
fisheries (1.5 animals) plus ship strikes (0.25 animals), is 1.75 
animals, which is 76.1 percent of this stock's PBR (above the 0.1 PBR 
threshold, but below PBR). Although several humpback whales were 
entangled in recent years in crab pot gear and in unknown pot/net 
fisheries in California, the total fisheries-related serious injury and 
mortality is less than this stock's PBR. Since the beginning of the 
NMFS observer program in 1990, no mortalities or serious injuries of 
humpback whales have been attributed to the CA/OR drift gillnet 
fishery. No other Category I or II commercial fisheries have a history 
of causing mortality and serious injury of this stock. In addition, 
after the implementation of the POCTRP, overall cetacean entanglement 
rates in the drift gillnet fishery dropped considerably. Finally, the 
population for this stock is considered to be increasing by 6-7 percent 
per year (Carretta et al., 2006). Because fishery-caused mortality and 
serious injury, in combination with other sources of human-caused 
mortality and serious injury, are below the PBR of an increasing stock, 
NMFS determines that mortality and serious injury incidental to 
commercial fisheries will have a negligible impact on the ENP stock of 
humpback whales using criterion 3.

Sperm Whale, CA/OR/WA Stock

    The annual average serious injury and mortality to the CA/OR/WA 
stock of sperm whales from commercial fisheries ( 0.75 animals) plus 
ship strikes (0.38 animals), is 1.13 animals, which is 62.5 percent of 
this stock's PBR (above the 0.1 PBR threshold, but below PBR). The 
minimum population estimate for this stock is considered to be 
variable, with no obvious trend (Carretta et al., 2006). However, the 
overall population of sperm whales has increased worldwide since it was 
listed under the ESA in 1973. Although it is difficult to determine a 
trend for the CA/OR/WA stock of sperm whales, this stock does not 
appear to be declining; therefore, it is either stable or increasing. 
The average annual fisheries-related mortality and serious injury for 
this stock is below PBR. Since the implementation of the POCTRP, only 
one sperm whale was incidentally taken (1998; taken prior to the 2001 
closure off central California/southern Oregon) in the CA/OR drift 
gillnet fishery, but the net did not have a full complement of pingers; 
therefore, it is difficult to evaluate whether pingers have an effect 
on sperm whale entanglement. However, pingers have shown to have a 
positive effect on other odontocetes (i.e., lower entanglement rates) 
(Barlow and Cameron 2003). Further, there has not been a take of sperm 
whales since 1998 and the likelihood that a sperm whale would be taken 
by the CA/OR drift gillnet fishery is very low. Because the stock is 
stable or increasing and total human-caused mortality and serious 
injury is below PBR, NMFS determines that the mortality and serious 
injury incidental to commercial fisheries will have a negligible impact 
on the CA/OR/WA stock of sperm whales using criterion 3.
     A permit is hereby issued to the CA/OR drift gillnet fishery 
authorizing the non-lethal taking of individuals from the CA/OR/WA 
stock of fin whales, the ENP stock of humpback whales, and the CA/OR/WA 
stock of sperm whales for a 3-year period. If NMFS determines at a 
later date that incidental mortality and serious injury from commercial 
fishing is having more than a negligible impact on these stocks, NMFS 
may use its emergency authority under MMPA section 118 to protect the 
affected stock or stocks and may modify the permit issued herein. In 
accordance with the MMPA, participants in Category III fisheries 
included in Table I are also authorized to take marine mammals from 
these three stocks of marine mammals so long as such taking is reported 
in accordance with MMPA section 118(d).

[[Page 60819]]



 Table 1. List of Fisheries Authorized to Take Threatened and Endangered
            Marine Mammals Incidental to Fishing Operations.
------------------------------------------------------------------------
           Fishery              Category        Marine Mammal Stock
------------------------------------------------------------------------
 CA/OR Drift Gillnet Fishery           I       Fin whale, CA/OR/WA stock
                                               Humpback whale, ENP stock
                                             Sperm whale, CA/OR/WA stock
  CA lobster, prawn, shrimp,         III       Fin whale, CA/OR/WA stock
     rock crab, fish pot                       Humpback whale, ENP stock
                                             Sperm whale, CA/OR/WA stock
      WA/OR/CA crab pot              III       Fin whale, CA/OR/WA stock
                                               Humpback whale, ENP stock
                                             Sperm whale, CA/OR/WA stock
------------------------------------------------------------------------

Comments and Responses

    NMFS received six comment letters concerning the proposal for 
issuance of the 101(a)(5)(E) permit under the MMPA. All of these 
letters were in opposition to the issuance this permit. Two commenters 
expressed opposition to the issuance of a permit but did not explain 
the basis for their opposition. Therefore, these comments are not 
included the following summary of comments and responses.
    Comment 1: Commenters stated that any fishing pursuant to the EFP 
would require a separate MMPA permit from NMFS.
    Response: NMFS disagrees. The current 101(a)(5)(E) permit 
authorizes the taking of marine mammals incidental to the operation of 
the CA/OR drift gillnet fishery as it currently operates and would 
include fishing under an EFP, if proposed similarly to the application 
in 2006 and 2007 (i.e., fishing in the currently closed leatherback 
conservation area). The negligible impact determination included 
operation prior to 2001, when the affected area was open (see Current 
Negligible Impact); therefore, NMFS determined that commercial fishing, 
including that under an EFP, had it been approved, will have a 
negligible impact. The monitoring program would remain in place, 
vessels would be registered, and the take reduction plan would remain 
in effect. However, just as the current operation of the fishery 
required analysis under the ESA and NEPA, expanding effort through 
approval of a proposed EFP would require additional analyses pursuant 
to these statutes.
    Comment 2: Commenters stated that NMFS improperly issued the 
October 2000 permit.
    Response: NMFS disagrees. In the October 2000 permit (65 FR 64670), 
NMFS made all requisite determinations and followed the procedures for 
public comment required by MMPA section 101(a)(5)(E); therefore, the 
issuance of the 2000 permit was appropriate.
    Comment 3: Commenters stated that the CA/OR drift gillnet fishery 
has continued to entangle ESA-listed marine mammals in the absence of a 
permit and, thus, has operated illegally for the past three years.
    Response: NMFS disagrees. The MMPA permit addresses only the take 
of ESA-listed marine mammals incidental to the fishery rather than the 
operation of the fishery. One entanglement of a humpback whale occurred 
after the previous permit expired in 2003. The entangling net was out 
of compliance with regulations implementing the POCTRP. Thus, the 
participant in this fishery was not operating lawfully and take was not 
authorized. The event was reported for investigation. This 101(a)(5)(E) 
permit was initiated to ensure any future taking of threatened or 
endangered marine mammals is authorized in accordance with the ESA and 
MMPA.
    Comment 4: Commenters expressed that NMFS cannot lawfully make a 
negligible impact determination for sperm whales because take is not 
below 10 percent of the PBR level. PBR for this stock is 1.8 whales per 
year, and the estimated take is 1.13 whales per year. Total mortality 
for sperm whales exceeds 10 percent of the PBR. The determinations for 
this permit are based upon the 1999 criteria, which are consistent with 
the objective to delay recovery by no more than 10 percent.
    Response: NMFS disagrees. The MMPA contains no reference to 10 
percent of PBR nor does it define negligible impact. The determinations 
for this stock was based upon criterion 3 as adopted in 1999 (see 
Current Negligible Impact Determination), which is consistent with the 
objective to delay recovery by no more than 10 percent.
    Comment 5: Commenters questioned whether a permit could be issued 
under section 101(a)(5)(E) of the MMPA because there is insufficient 
evidence to support NMFS' determination that the CA/OR/WA sperm whale 
stock is stable or increasing because the population does not show 
obvious trends and since the level of mortality sustained by the stock 
is stated to be ``unknown'' or ``uncertain.'' NMFS cannot make a 
finding that the stock is stable or increasing. At best, the agency 
states that ``this stock does not appear to be declining.
    Response: NMFS disagrees. As the comment notes, NMFS has 
established that the population is not decreasing; therefore, it is 
either stable or increasing. Although there remains some uncertainty 
related to the abundance of the population, the apparent trend for 
sperm whales in the Pacific Ocean is an increase, and this apparent 
increase is occurring even with current levels of mortality and serious 
injury.
    Comment 6: Commenters remarked that NMFS cannot lawfully make a 
negligible impact determination for humpback whales because take is not 
below 10 percent PBR. The estimated take is 1.75 whales per year, but 
this is a gross underestimate. The PBR estimate is 2.3 whales per year. 
NMFS has substantial information on file that significant unobserved 
and/or unreported take is occurring. Commenters stated that NMFS needs 
to make the finding that the humpback whale stock ``is stable or 
increasing,'' not ``likely stable or increasing.
    Response: NMFS disagrees that we cannot lawfully make a negligible 
impact determination, as noted in the response to comment 4. Although 
there are uncertainties in the mortality estimates, the performance of 
the delay in recovery criterion (Wade, 1998) is robust from bias and 
variance in mortality, as well as abundance estimates. According to the 
2006 SARs and the best scientific information available, the Eastern 
North Pacific humpback whale stock is increasing in abundance, and NMFS 
has modified text in the Negligible Impact Determination to be clear 
that the population is ``stable or increasing.

[[Page 60820]]

    Comment 7: Commenters remarked that NMFS cannot lawfully make a 
negligible impact determination for fin whales because take is ``at'' 
10 percent PBR. These commenters noted that 1.5 fin whales injured and 
killed per year is not ``below'' 10 percent PBR, but rather it is 10 
percent of the stock's PBR of 15. Commenters stated that NMFS needs to 
make the finding that the fin whale stock ``is stable or increasing,'' 
not ``likely stable or increasing.''
    Response: NMFS disagrees. As noted in the response to comment 4, a 
lawful determination of negligible impact does not require reference to 
10 percent of PBR. Total human-caused mortality and serious injury of 
this stock of fin whales is 10 percent of the stock's PBR, which is the 
threshold for negligible impact determinations. Due to the ``stable or 
increasing'' trend and the recovery factor of 0.1 in the PBR 
calculation for fin whales, this minor deviation from the specific 
wording of criterion 1 would not affect the over-arching goal to delay 
recovery by no more than 10 percent (see Current Negligible Impact 
Determination). Therefore, NMFS considered total human-caused mortality 
and serious injury at, rather than below, 10 percent of the stock's PBR 
to be a negligible impact. According to the 2006 SARs and the best 
scientific information available, the CA/OR/WA fin whale stock is 
increasing in abundance and NMFS has worded the Negligible Impact 
Determination to be clear that the population is ``stable or 
increasing.''
    Comment 8: Commenters state that NMFS' calculations of total human-
caused mortality and serious injury of fin, humpback, and sperm whales, 
is a gross underestimate, as most ship strikes go unreported and other 
fisheries that are known to entangle large whales remain unobserved.
    Response: NMFS agrees that the total human-caused mortality and 
serious injury of fin, humpback, and sperm whales may be 
underestimates, but the agency used the best available data for our 
analysis in making the negligible impact determination. Although 
mortality may be underestimated, Wade (1998) showed that NMFS' basis 
for negligible impact determinations is robust to certain levels of 
underestimated mortality; therefore, NMFS determined that mortality and 
serious injury incidental to commercial fishing operations will have a 
negligible impact on these whale stocks.
    Comment 9: Commenters stated that the deadline for Zero Mortality 
Rate Goal (ZMRG) has passed, and any take above ZMRG would be unlawful.
    Response: NMFS disagrees and believes that this comment 
misinterprets the MMPA. The ZMRG, as described in Section 118 of the 
MMPA, has four parts. First, there is a threshold level of mortality 
and serious injury (insignificant levels approaching a zero mortality 
and serious injury rate) and a deadline by which commercial fisheries 
should reach the threshold. Second, there is a statement that fisheries 
that have achieved the threshold level of mortality and serious injury 
are not required to further reduce incidental mortality and serious 
injury. Third, there is a requirement for a review of fisheries 
progress toward the threshold. Fourth, there is a mechanism for 
reducing incidental mortality and serious injury (i.e., take reduction 
plans). Although the threshold and deadline are stated without 
condition, there is no statement in the MMPA that excess removals 
(mortality and serious injury exceeding threshold values after the 
deadline) cannot be authorized. The fourth part of the ZMRG states that 
these excess removals must be addressed through the take reduction plan 
process. NMFS has implemented a POCTRP as developed by a Pacific 
Offshore Cetacean Take Reduction Team (POCTRT) convened pursuant to 
MMPA section 118(f) and continues to keep that team intact until the 
threshold level of removals under the ZMRG has been achieved. NMFS 
convened a meeting of the POCTRT in April 2007 to evaluate the existing 
removal levels, to consider the economics of the fishery, the 
availability of existing technology, and existing fishery management 
plans, and to recommend, as appropriate, additional measures to further 
reduce incidental removals.
    Comment 10: Commenters stated that it is unacceptable that the 
recovery plan for the humpback whale is 15 years old and the sperm and 
fin whales plan are in draft form.
    Response: NMFS disagrees. Section 101(a)(5)(E) of the MMPA requires 
that ``a recovery plan has been developed or is being developed.'' 
Although, the humpback whale recovery plan was completed in 1991, NMFS 
maintains that this recovery plan is still effective, due in part to 
the documented increase in humpback whale populations in the Atlantic 
and Pacific Oceans (Carretta et al., 2006, Waring et al., 2006, and 
Angliss and Outlaw, 2006). NMFS announced the availability of draft 
recovery plans for fin and sperm whales on July 6, 2006 (71 FR 38385). 
Following a 60-day public comment period, NMFS is finalizing the sperm 
and fin whale recovery plans.
    Comment 11: Commenters remarked that the proposed permit is 
inconsistent with the Guidelines for Assessing Marine Mammal Stocks 
(GAMMS) report and legislative intent (90 percent production reserved 
for recovery) and the proposed permit would waive the requirement that 
mortality not delay recovery by more than 10 percent. These commenters 
also stated that the proposal essentially renders the margin of safety 
created by the recovery factor meaningless and thereby reduces 
protection for listed species. In addition, commenters stated that the 
criteria are inconsistent with MMPA, that NMFS abandoned its previous 
``more conservative approach'' (10 percent PBR in 1999) by adopting 
criteria based on internal review, and that the proposed permit further 
diminishes conservation for the most imperiled marine mammals.
    Response: NMFS disagrees that the approach used here is 
inconsistent with NMFS' guidelines for preparing stock assessment 
reports or with legislative intent. The approach for determining 
negligible impact is consistent with the guidelines prepared by the 
Commission and submitted to NMFS in 1990 to be used in its development 
of a regime to govern the mortality and serious injury of marine 
mammals incidental to commercial fishing operations. In the guidelines, 
the Commission stated that a negligible impact should cause no more 
than a 10 percent delay in a severely depleted stock's recovery. 
Although this approach is less restrictive than a strict application of 
10 percent of PBR as a threshold, the criteria adopted in 1999, which 
were applied in 2000 and used in this determination, are appropriate 
for a negligible impact determination because they fulfill NMFS' 
original objective to allow human-caused mortality and serious injury 
to cause no more than a 10 percent delay in the recovery of the 
affected stocks of marine mammals (see History of Applying Negligible 
Impact in Fisheries).
    Comment 12: Commenters stated that the permit violates section 2(c) 
and 7(a)(1) of the ESA because the agency is required to use its 
authorities to further the purpose of listed species conservation. In 
addition, commenters noted that the ESA requires agencies to suspend 
activities that result in taking, and issuing a permit to continue to 
take without requiring additional measures to reduce bycatch violates 
the statutory directive to conserve listed species.
    Response: NMFS disagrees. Issuance of this 101(a)(5)(E) permit is 
not a violation of either section 2(c) or 7(a)(1) of the ESA because 
this action would

[[Page 60821]]

authorize a level of take that would have a negligible impact on these 
three stocks of whales. Such an approach is consistent with the MMPA 
and is more restrictive than the ``jeopardy'' standard required in 
Section 7 of the ESA. The approach is also consistent with ESA section 
2(c) because such a limit on mortality and serious injury promotes 
rapid recovery of the affected stocks; thus, NMFS is using its 
authority to promote the conservation and recovery of these species.
    Comment 13: Commenters stated that the Steller sea lions should be 
included in the analysis.
    Response: NMFS disagrees. Over the past 16 years, only two Steller 
sea lions have been observed taken by the drift gillnet fishery, one 
off southern California in 1992, and one off the CA/OR border in 1994. 
No Steller sea lions have been observed taken or reported entangled in 
drift gillnet gear since 1994. NMFS expects the entanglement of Steller 
sea lions in this fishery to be a rare event and not likely to occur 
within the next three years. Because taking Steller sea lions is not 
expected, this species was not included in the analysis, and no take of 
Steller sea lions is permitted.
    Comment 14: Commenters stated that if NMFS intends to rely on the 
EIS prepared for the HMS FMP for compliance with NEPA, the agency must 
make the document available for review. Comments were provided 
previously on the significant legal flaws with that EIS.
    Response: NMFS agrees that the EIS should be open to public 
comment. In accordance with the provisions of NEPA, NMFS solicited 
public comments on the Draft EIS (August 2003) for the HMS FMP and also 
solicited comments on the Final EIS in December 2003.
    Comment 15: Commenters noted that numerous participants in the CA/
OR drift gillnet fishery regularly operate in violation of applicable 
law and regulations. Rather than do anything about this gross non-
compliance, NMFS simply assumes that compliance will be better this 
year. Given the flagrant disregard of MMPA provisions by the vessels in 
the fishery, commenters stated that NMFS must deny the permit to the 
fishery, or, at a minimum, suspend all other authorizations and permits 
for vessels in the fishery that have either not registered with NMFS as 
required under section 118(c) of the MMPA, or that have fished in 
violation of the POCTRP regulations. These commenters also noted that 
there are inconsistencies in the number of permit holders and expected 
number of participants in the fishery. NMFS indirectly admits that over 
40 percent of the vessels in the fishery are violating registration 
requirements.
    Response: NMFS disagrees that participants in this fishery 
regularly operate in violation of the law. The only specific violation 
described in the comment is a low proportion of the estimated number of 
participants are registered under the MMPA. This difference between 
estimated number of participants and the number of registered vessels 
does not reflect a violation of the law. As noted earlier in this 
notice (see Description of the Fishery), the estimated number of 
participants is based on a historical record of the number of 
individuals who have expressed intent to fish. Such an intent does not 
necessarily mean that there was active fishing by that vessel. Rather, 
the vessel owner or captain may have fished in the past or expressed 
intent to fish in the past; however, this vessel was not actively 
fishing in the affected year. Consequently, the number of registered 
vessels is lower than the estimated number of participants.
    Comment 16: One commenter stated that fishing under the proposed 
EFP will undoubtedly kill endangered marine mammals, and, therefore, 
authorization under both the ESA and MMPA is required. The proposed 
permit makes no mention of the EFP, while in several places it mentions 
the leatherback closure as a likely factor in reducing marine mammal 
take to levels that NMFS feels it can make a negligible impact 
determination. This commenter noted that NMFS cannot rely on these 2004 
documents for ESA and NEPA compliance (in reference to the HMS FMP EIS 
and biological opinion (BO)), and that NMFS would have to carry out a 
new consultation on the FMP as a whole and issue and circulate a new 
draft EIS for public comment. In addition, the commenter stated that 
NMFS cannot claim that the new ESA consultation it is currently 
carrying out for the EFP would also be sufficient for the MMPA permit.
    Response: NMFS disagrees that expanding fishing effort, as proposed 
in the 2006 and 2007 EFP application, would undoubtedly result in 
deaths of endangered marine mammals. Takes through this fishing 
activity that result in mortality are rare events, and there is very 
limited additional effort requested under the EFP. If NMFS and/or the 
PFMC considers a DGN EFP in the future, as similarly proposed in 2006 
and 2007, a section 7 consultation and all other applicable analyses 
would need to be completed before issuance.
    Comment 17: One commenter expressed that NMFS states that it will 
rely on the February 2004 BO for the HMS FMP. This commenter noted that 
no take of ESA-listed marine mammals was authorized in this BO. 
Nevertheless, take of humpback whales has occurred since the BO. The 
commenter stated that therefore, the reinitiation requirements have 
been triggered.
    Response: NMFS disagrees. The 2004 BO for the HMS FMP included an 
Incidental Take Statement which estimated the anticipated incidental 
take of listed species in the HMS fisheries. The estimated entanglement 
of fin, humpback, and sperm whales was 4 animals in 3 years, per 
species. The estimated mortality of fin and sperm whales was 2 animals 
in 3 years, per species. There were no anticipated mortalities of 
humpback whales. The entangled humpback whale in 2004 was released 
alive and uninjured. However, the net used was not in full compliance 
with the POCTRP (NMFS Observer Program 2006), and therefore not in 
compliance with the incidental take statement, which anticipates take 
during lawful activity. Because the take did not occur incidental to a 
lawful activity, the incidental take statement is not applicable, and 
no violation occurred. As mentioned earlier, this incident has been 
forwarded to the NMFS Southwest Regional Office of Law Enforcement for 
investigation. This permit was initiated to ensure that taking marine 
mammals incidental to the fishery was consistent with the MMPA as well 
as the ESA.
    Comment 18: One commenter expressed concern that observer coverage 
for the rest of the fishery would be limited and that there is no 
assurance that sufficient observer coverage can be maintained, due to 
100 percent observer coverage required for EFP.
    Response: Observer coverage for the current drift gillnet fishery 
averages at least 20 percent per year. NMFS expects to maintain this 
level of coverage even if an EFP is issued.
    Comment 19: One commenter stated that the permit is only being 
issued to support the EFP. The commenter noted that NMFS should 
properly conduct the negligible impact analysis and should not rush its 
analysis for the sake of approving the EFP.
    Response: The permit is being issued to fulfill NMFS' obligations 
under MMPA section 101(a)(5)(E). The analysis of the CA/OR drift 
gillnet observer data from 1998-2005 resulted in a negligible impact 
determination for the CA/OR/WA stocks of fin and sperm whales and ENP 
stock of humpback whales. The negligible impact analysis

[[Page 60822]]

was a deliberate process that took more than a year to complete and 
ensures that the DGN is operating consistent with the requirements of 
the ESA and the MMPA.
    Comment 20: Commenters stated that criterion 1 is not appropriate 
criteria to use for fin whales; therefore, it is improper to make a 
negligible impact determination under criterion 1 and that NMFS must 
move to perform analysis under criterion 2.
    Response: NMFS disagrees. In applying the 1999 criteria, NMFS uses 
criterion 1 as the starting point for the analyses. If this criterion 
is satisfied, the analysis would be concluded. If criterion 1 is not 
satisfied, NMFS may use one of the other criteria, as appropriate. 
Total human-caused mortality of this stock of fin whales does not 
exceed the threshold, and, as noted earlier (see History of Applying 
Negligible Impact in Fisheries and Current Negligible Impact 
Determination), there are other factors (e.g., recovery factor in the 
PBR calculation and the trend in abundance of the stock) supporting the 
use of criterion 1.
    Comment 21: Commenters stated that criterion 1 is not appropriate 
to use for humpback whales; therefore it is improper to find under 
criterion 1. Commenters questioned whether a finding under criterion 3 
was appropriate because of ``certainty of data.'' Criterion 3 should be 
applied in a conservative manner, and NMFS should not overlook 
significant sources of uncertainty (human-cause injury and mortality). 
NMFS' declaration that mortality and serious injury caused by Category 
I and II fisheries will not delay recovery time by more than 10 percent 
is irrelevant, as criterion 3 looks to ``total fisheries-related 
serious injuries and mortalities.
    Response: NMFS applied criterion 3, not criterion 1, to assess the 
total fisheries-related serious injury and mortality to the humpback 
whale and adjusted the Negligible Impact Determination accordingly. 
Criterion 3 is appropriate when the affected population is stable or 
increasing and human-caused mortality is above 10 percent of PBR but 
less than PBR. These conditions were satisfied in this case; therefore, 
criterion 3 was appropriate.
    Comment 22: Commenters remarked that with regard to the fin whale, 
under criterion 2, non-fisheries related mortality must have already 
been addressed with specific ``management measures,'' before a permit 
can be issued.
    Response: As noted earlier (see History of Applying Negligible 
Impact in Fisheries), criterion 1 is the starting point for negligible 
impact analyses, and the others are used only if this criterion is not 
satisfied. In this case, criterion 1 was satisfied (human-caused 
mortality did not exceed 10 percent of PBR); therefore, NMFS did not 
use criterion 2, which is premised on total human-caused mortality 
exceeding 10 percent of PBR.
    Comment 23: Commenters stated that management measures do not exist 
or are not intended to address the mortality of these three species. 
Pingers are not effective in preventing mysticete entanglements and 
have not been proven effective and/or the effectiveness of pingers is 
not well understood for sperm whales.
    Response: NMFS disagrees that management measures are not in place 
to address the mortality of these three species. The POCTRP contains 
many regulatory and non-regulatory measures designed to reduced 
mortality and serious injury of marine mammals. Since implementation of 
the POCTRP, mortality and serious injury of marine mammals incidental 
to the gillnet fishery are lower than in years prior to the POCTRP.
    Comment 24: One commenter noted that there was no plan to reduce 
ship strikes on the west coast.
    Response: NMFS Southwest Regional Office is working with the U.S. 
Coast Guard to develop a system to report sightings and location of 
marine mammals, large cetaceans in particular, and notify mariners of 
the presence and location of such marine mammals.
    Comment 25: One commenter stated that ship-related deaths of large 
cetaceans go largely undetected in the absence of thorough necropsies 
of dead stranded animals. Dead or stranded humpback whales are not 
routinely necropsied throughout the range of this stock.
    Response: NMFS acknowledges that there are uncertainties in 
assigning cause of death in many stranded marine mammals, generally due 
to decomposition of tissues and that necropsies are an important tool 
in helping to determine cause of death. Members of the marine mammal 
stranding network perform necropsies on marine mammals throughout the 
west coast region, when possible.
    Comment 26: One commenter stated that just because enforcement was 
lax enough that a take occurred in an illegal net, this does not 
obviate risk to species.
    Response: NMFS considered all mortality and serious injury, 
including the incident noted in this comment (the humpback whale was 
incidentally taken, but released alive and uninjured in 2004), in the 
current negligible impact determinations for the fin, sperm, and 
humpback whales. NMFS forwarded the incident in question to the 
Southwest Region's Office of Law Enforcement.
    Comment 27: Commenters expressed that issuance of the proposed 
permit would violate two requirements of the National Marine 
Sanctuaries Act: to avoid injury to Sanctuary resources and to consult 
with the National Ocean Service about potential effects on Sanctuary 
resources. The fishery overlaps the boundaries of three national marine 
sanctuaries. The fin, humpback, and sperm whales are all resources 
protected by these sanctuary designations. Fishing under the proposed 
permit would clearly ``destroy, cause the loss, or injure'' these 
resources.
    Response: The fishery overlaps four sanctuaries. NMFS consults with 
staff in the affected sanctuaries to ensure fishery operations are 
consistent with all relevant statutory and regulatory provisions.

    Dated: October 23, 2007.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E7-21091 Filed 10-25-07; 8:45 am]
BILLING CODE 3510-22-S