[Federal Register Volume 80, Number 78 (Thursday, April 23, 2015)]
[Notices]
[Pages 22709-22715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09447]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC645


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

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

ACTION: Notice.

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SUMMARY: NMFS hereby issues an amended permit to authorize the 
incidental, but not intentional, take of two stocks of marine mammals 
listed as threatened or endangered under the Endangered Species Act 
(ESA), Marine Mammal Protection Act (MMPA), by the California (CA) 
thresher shark/swordfish drift gillnet fishery (>=14 in mesh) and the 
Washington (WA)/Oregon (OR)/CA sablefish pot fishery. In accordance 
with the MMPA, NMFS has made a determination that incidental taking 
from commercial fishing will have a negligible impact on the endangered 
humpback whale, CA/OR/WA stock and endangered sperm whale, CA/OR/WA 
stock. This authorization is based on a determination that this 
incidental take will have a negligible impact on the affected marine 
mammal stocks, recovery plans have been developed for each species, a 
monitoring program is established, vessels in the fisheries are 
registered, and that the necessary take reduction planning is in place 
for the humpback and sperm whale stocks. This amended permit replaces 
the permit issued on September 4, 2013.

DATES: This amended permit is effective on April 23, 2015 and expires 
on September 4, 2016.

ADDRESSES: Reference material for this permit is available on the 
Internet at: http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/marine_mammals_html. Recovery plans for these species 
are available on the Internet at: http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals. Information on the Pacific Offshore Cetacean Take 
Reduction Plan is available on the Internet at: http://www.nmfs.noaa.gov/pr/interactions/trt/poctrp.htm.
    Copies of the reference materials may also be obtained from the 
Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long 
Beach, CA 90802.

FOR FURTHER INFORMATION CONTACT: Monica DeAngelis, NMFS West Coast 
Region, (562) 980-3232, or Shannon Bettridge, NMFS Office of Protected 
Resources, (301) 427-8402.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(E) of the Marine Mammal Protection Act (MMPA), 16 
U.S.C. 1361 et seq., states that NOAA's National Marine Fisheries 
Service (NMFS), as delegated by the Secretary of Commerce, shall for a 
period of up to three years allow the incidental taking of marine 
mammal species listed under the Endangered Species Act (ESA), 16 U.S.C. 
1531 et seq., by persons using vessels of the United States and those 
vessels which have valid fishing permits issued by the Secretary in 
accordance with section 204(b) of the Magnuson-Stevens Fishery 
Conservation and Management Act, 16 U.S.C. 1824(b), while engaging in 
commercial fishing operations, if NMFS makes certain determinations. 
NMFS must determine, after notice and opportunity for public comment, 
that: (1) Incidental 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 25, 2014 (79 FR 50626), NMFS proposed to issue an amended 
permit under MMPA section 101(a)(5)(E) to vessels registered in the CA 
thresher shark/swordfish drift gillnet fishery (=14 in mesh) 
to incidentally take individuals from two stocks of threatened or 
endangered marine mammals: The CA/OR/WA stock of humpback whales 
(Megaptera novaeangliae) and the CA/OR/WA stock of sperm whales 
(Physeter macrocephalus); and to vessels registered in WA/OR/CA 
sablefish pot fishery to incidentally take individuals from the CA/OR/
WA stock of humpback whales. A history of MMPA section 101(a)(5)(E) 
permits related to these stocks was included in previous notices

[[Page 22710]]

for other permits to take threatened or endangered marine mammals 
incidental to commercial fishing (e.g., 72 FR 60814, October 26, 2007; 
78 FR 54553, September 4, 2013) and is not repeated here. The data for 
considering these authorizations were reviewed coincident with the 2014 
MMPA List of Fisheries (LOF; 79 FR 14418, March 14, 2014), final 2013 
U.S. Pacific Marine Mammal Stock Assessment Reports (SAR; Carretta et 
al. 2014a), the draft 2014 U.S. Marine Mammal SAR (Carretta et al. 
2014b), Carretta and Moore (2014), Moore and Barlow (2014), the Fishery 
Management Plan (FMP) for U.S. West Coast Fisheries for Highly 
Migratory Species (HMS), recovery plans for these species (available on 
the Internet at: http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals), the best scientific information and available data, 
and other relevant sources.
    The previous permit was issued on September 4, 2013 (78 FR 54553), 
valid for a period of up to 3 years and expiring on September 4, 2016, 
and covered the CA/OR/WA stocks of humpback, fin, and sperm whale. 
Since issuing that permit, there have been significant changes in the 
information and conditions used to make the negligible impact 
determination for that permit. This MMPA 101(a)(5)(E) permit amends the 
previously issued permit, updates the information on the known 
biological and ecological data on sperm and humpback whales, and 
updates information on human-caused mortality and serious injury (M/
SI), since the September 2013 permit (78 FR 54553). This 101(a)(5)(E) 
permit does not extend the expiration date and remains effective until 
September 4, 2016. The final amended negligible impact determination 
does not include the CA/OR/WA fin whale stock because there has been no 
observed take of a fin whale in the CA thresher shark/swordfish drift 
gillnet fishery (>=14 in mesh) for the past 15 years. Therefore, the 
new amended permit will only cover the CA/OR/WA stocks of humpback and 
sperm whales and will no longer cover the CA/OR/WA fin whale stock.
    Based on observer data and marine mammal reporting forms, the 
vessels operating in the Category I CA thresher shark/swordfish drift 
gillnet fishery (>=14 in mesh) and the Category II WA/OR/CA sablefish 
pot fishery are the only Federal Category I and II fisheries that 
operate in the ranges of affected stocks, namely the CA/OR/WA stocks of 
humpback whale and sperm whale, are currently authorized. A detailed 
description of these fisheries can be found in the negligible impact 
determination (see ADDRESSES). The CA thresher shark/swordfish drift 
gillnet fishery (>=14 in mesh) is the only Category I fishery operating 
off the coasts of California, Oregon, and Washington. All other 
Category II fisheries that may interact with the marine mammal stocks 
observed off the coasts of California, Oregon, and Washington are state 
managed and are not considered for authorization under this permit. 
NMFS calculated the total known, assumed, or extrapolated human-caused 
M/SI to make a final negligible impact determination for this 
authorization and included all human sources. Participants in Category 
III fisheries are not required to obtain incidental take permits under 
MMPA section 101(a)(5)(E) but are required to report any mortality or 
injury of marine mammals incidental to their operations (Section 118 of 
the MMPA 16 U.S.C. 1387 and 50 CFR part 229).

Basis for Determining Negligible Impact

    Prior to issuing a permit to take ESA-listed marine mammals 
incidental to commercial fishing, NMFS must determine if M/SI 
incidental to commercial fisheries will have a negligible impact on the 
affected species or stocks of marine mammals. NMFS satisfied this 
requirement through completion of a negligible impact determination 
(see ADDRESSES). NMFS clarifies that incidental M/SI from commercial 
fisheries includes M/SI from entanglement in fishing gear or ingestion 
of fishing gear. NMFS calculated the total human-caused M/SI to make a 
negligible impact determination for this authorization and included all 
human sources, such as commercial fisheries and ship strikes. Indirect 
effects, such as the effects of removing prey from habitat, are not 
included in this analysis. A biological opinion prepared under ESA 
section 7 considers direct and indirect effects of Federal actions 
(available at http://www.westcoast.fisheries.noaa.gov/) and thus 
contains a broader scope of analysis than is required by MMPA section 
101(a)(5)(E).
    Although the MMPA does not define ``negligible impact,'' NMFS has 
issued regulations providing a qualitative definition of ``negligible 
impact'' 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.'' Through scientific analysis, 
peer review, and public notice, NMFS has developed a quantitative 
approach to making a negligible impact determination for MMPA section 
101(A)(5)(E) permits, and is followed here. The development of the 
approach is outlined in previous notices for other permits to take 
threatened or endangered marine mammals incidental to commercial 
fishing (e.g., 72 FR 60814, October 26, 2007; 78 FR 54553, September 4, 
2013).

Criteria for Determining Negligible Impact

    In 1999, NMFS proposed criteria to determine whether M/SI 
incidental to commercial fisheries will have a negligible impact on a 
listed marine mammal stock for MMPA 101(a)(5)(E) permits (64 FR 28800, 
May 27, 1999). In applying the 1999 criteria, Criterion 1 is whether 
total known, assumed, or extrapolated human-caused M/SI is less than 10 
percent of the potential biological removal level (PBR) for the stock. 
If total known, assumed, or extrapolated human-caused M/SI is less than 
10 percent of PBR, the analysis would be concluded, and the impact 
would be determined to be negligible. If Criterion 1 is not satisfied, 
NMFS may use one of the other criteria as appropriate. Criterion 2 is 
satisfied if the total known, assumed, or extrapolated human-caused M/
SI is greater than PBR, but fisheries-related M/SI is less than 10 
percent of PBR. If Criterion 2 is satisfied, vessels operating in 
individual fisheries may be permitted if management measures are being 
taken to address non-fisheries-related mortality and serious injury. 
Criterion 3 is satisfied if total fisheries-related M/SI is greater 
than 10 percent of PBR and less than PBR, and the population is stable 
or increasing. Fisheries may then be permitted subject to individual 
review and certainty of data. Criterion 4 stipulates that if the 
population abundance of a stock is declining, the threshold level of 10 
percent of PBR will continue to be used. Criterion 5 states that if 
total fisheries-related M/SI are greater than PBR, permits may not be 
issued for that species or stock.
    We considered two time frames for this analysis: 5 years (2009-
2013) and 13 years (2001-2013). The first time frame we considered for 
both stocks of whales was the most recent 5-year period (here, January 
1, 2009 through December 31, 2013), which is typically used for 
negligible impact determination analyses. A 5-year time frame in many 
cases provides enough data to adequately capture year-to-year 
variations in take levels, while reflecting current environmental and 
fishing conditions as they may change over time. For humpback whales, 
we used a 5-year period consistent with the general recommendations in 
NMFS' Guidelines for Assessing Marine

[[Page 22711]]

Mammal Stocks (GAMMS) for our final determination. However, GAMMS 
suggests that mortality estimates could be averaged over as many years 
as necessary to achieve a coefficient of variation of less than or 
equal to 0.3. Carretta and Moore (2014) determined that approximately 
25 years of pooling data is necessary before bycatch CVs approached the 
value of 0.3, considered adequate for management (NMFS 2005) and 
recommend pooling longer time series of data when bycatch is a rare 
event. In their analysis, pooling 10 years of fishery data resulted in 
bycatch estimates within 25 percent of the true bycatch rate over 50 
percent of the time (i.e., estimates were within 25 percent of the true 
value more often than not). Key to this approach was that the fishery 
must have had sufficiently constant characteristics (e.g., effort, 
gear, locations) to support the inference of consistent results across 
years such as with the CA thresher shark/swordfish drift gillnet 
fishery. Rare bycatch events typically involve smaller populations 
paired with low observer coverage in a fishery. If true bycatch 
mortality is low, but near PBR, then estimation bias needs to be 
reduced to allow reliable evaluation of the bycatch estimate against a 
low removal threshold.
    Currently, the sperm whale is the only ESA-listed marine mammal 
species interacting with the thresher shark/swordfish drift gillnet 
fishery (>=14 in mesh) meeting the conditions described in Carretta and 
Moore (2014): The stock has a relatively small minimum population 
estimate (Nmin), and two members of the stock was recently recorded as 
having been incidentally killed or seriously injured in a rare event 
(in the CA thresher shark/swordfish drift gillnet fishery (>=14 in 
mesh)). The post-2000 time period best represents the current spatial 
state of the fishery; and, therefore, we used the 13-year period post-
2000 to calculate mean annual mortality estimate for this stock of 
sperm whales, based on recommendations contained in the GAMMS and 
Carretta and Moore (2014). Moore and Barlow (2014) used a Bayesian 
hierarchical trend model for the CA/OR/WA sperm whale stock to more 
efficiently incorporate all available survey information to calculate 
the population abundance estimate using a longer time series to improve 
the precision of abundance estimates. The new analysis by Moore and 
Barlow (2014), estimates the minimum abundance at 1,332 sperm whales 
using the Bayesian hierarchical trend modeling of sighting data from 
2001-2012. We use this estimate as the basis of this analysis. The 
associated PBR for the CA/OR/WA stock of sperm whales is 2.7 (Draft 
2014 Pacific Marine Mammal Stock Assessment Reports, 80 FR 4881, 
January 29, 2015).

Negligible Impact Determinations

    As explained above, the permit amendment relies on a negligible 
impact determination that uses a new 13-year period for averaging sperm 
whale bycatch rates rather than the 5-year period generally recommended 
in the GAMMS because it best represents the spatial state of the 
fishery and more effectively incorporates all available survey 
information to calculate the population abundance estimate using the 
longer time series. We used a 5-year period for humpback whales 
consistent with the general recommendations in NMFS' GAMMS for our 
final determination (note that a 13-year time period (2001-2013) also 
resulted in a finding of negligible impact for humpback whales). The 
PBR for the CA/OR/WA humpback whale stock is 11 animals.
    The final amended negligible impact determination made available 
through this notice provides a complete analysis of the criteria for 
determining whether commercial fisheries off California, Oregon, and 
Washington are having a negligible impact on the CA/OR/WA stocks of 
humpback whale and sperm whale. A summary of the analysis and 
subsequent determination follows.

Criterion 1 Analysis

    Criterion 1 would be satisfied if the total known, assumed, or 
extrapolated human-caused M/SI is less than 10 percent of PBR. The 5-
year (2009-2013) average annual human-caused M/SI to the CA/OR/WA stock 
of humpback whales is 5.0 or 45.45 percent of the PBR. The 13-year 
(2001-2013) average annual M/SI to the CA/OR/WA stock of sperm whales 
from all human sources is 1.7 or 65.5 percent of the PBR. Criterion 1 
was not satisfied for either stock because the total known, assumed, or 
extrapolated human-caused M/SI for these stocks is not less than 10 
percent of PBR for the respective time period considered. As a result, 
the other criteria must be examined for the CA/OR/WA stocks of humpback 
and sperm whales.

Criterion 2 Analysis

    Criterion 2 is satisfied if total known, assumed, or extrapolated 
human-caused M/SI are greater than PBR and the total fisheries related 
mortality is less than 10 percent of PBR. Criterion 2 was not satisfied 
for the CA/OR/WA stocks of humpback whales or sperm whales for each 
time frame considered, based on the calculations described under 
Criterion 1. As a result, the other criteria were examined.

Criterion 3 Analysis

    Unlike Criteria 1 and 2, which examine total known, assumed, or 
extrapolated human-caused M/SI relative to PBR, Criterion 3 compares 
total fisheries-related M/SI to PBR. Criterion 3 would be satisfied if 
the total commercial fisheries-related M/SI (including state and 
federal fisheries) is greater than 10 percent and less than 100 percent 
of PBR for each stock for the respective time frame considered, and the 
populations of these stocks are considered to be stable or increasing. 
If the criterion is met, vessels may be permitted subject to individual 
review and certainty of data.
    Criterion 3 was satisfied for the CA/OR/WA humpback whale stock as 
the fishery-related M/SI from all commercial fisheries for the CA/OR/WA 
humpback whale stock is estimated at 40 percent of PBR (5-year average 
from 2009-2013 and between 10 percent and 100 percent of PBR), the 
stock has experienced a positive growth rate (8 percent per year), and 
there have been few known or assumed M/SI due to the subject fisheries.
    Criterion 3 was satisfied for the CA/OR/WA sperm whale stock as the 
total fishery-related M/SI is greater than 10 percent of and less than 
100 percent of PBR, and the population is considered stable. The 
fishery-related M/SI from all commercial fisheries for the CA/OR/WA 
sperm whale stock is estimated at 57 percent of PBR for the 13-year 
period of 2001-2013.
    In conclusion, based on the criteria outlined in 1999 (64 FR 
28800), the final 2013 U.S. Pacific Marine Mammal SAR (Carretta et al. 
2014), the draft 2014 U.S. Pacific Marine Mammal SAR (Carretta et al. 
2014), Carretta and Moore (2014), Moore and Barlow (2014), and the best 
available scientific information, available data and other sources, 
NMFS has determined that the M/SI incidental to the CA thresher shark/
swordfish drift gillnet fishery and the WA/OR/CA sablefish pot fishery 
will have a negligible impact on the CA/OR/WA stock of humpback whales 
and the CA thresher shark/swordfish drift gillnet fishery will have a 
negligible impact on the CA/OR/WA stock of sperm whales.

Determinations

    Based on the above assessment and as described in the accompanying 
final negligible impact determination, NMFS concludes that the 
incidental M/SI from the CA thresher shark/swordfish drift

[[Page 22712]]

gillnet fishery (>=14 in mesh) and WA/OR/CA sablefish pot fishery will 
have a negligible impact on the CA/OR/WA stock of humpback whales and 
the CA/OR/WA stock of sperm whales, and the WA/OR/CA sablefish pot 
fishery will have a negligible impact on the CA/OR/WA stock of humpback 
whales. Since there have been no documented interactions between the 
CA/OR/WA stock of sperm whale and the WA/OR/CA sablefish pot fishery, 
that sperm whale stock is not evaluated for that fishery.
    The National Environmental Policy Act (NEPA) requires Federal 
agencies to evaluate the impacts of alternatives for their actions on 
the human environment. The impacts on the human environment of 
continuing and modifying the CA thresher shark/swordfish drift gillnet 
fishery (>=14 inch mesh) (as part of the HMS fisheries) and the WA/OR/
CA sablefish pot fishery (as part of the West Coast groundfish 
fisheries), including the taking of threatened and endangered species 
of marine mammals, were analyzed in: The Pacific Fishery Management 
Council Highly Migratory Species FMP final environmental impact 
statement (August 2003); the Pacific Fishery Management Council 
Proposed Harvest Specifications and Management Measures for the 2013-
2014 Pacific Coast Groundfish Fishery and Amendment 21-2 to the Pacific 
Coast FMP (September 2012); Risk assessment of U.S. West Coast 
groundfish fisheries to threatened and endangered marine species 
(NWFSC, 2012); and in the Final Biological Opinion prepared for the 
West Coast groundfish fisheries (NMFS, 2012) and the draft Biological 
Opinion for the CA thresher shark/swordfish drift gillnet fishery (>=14 
inch mesh) (NMFS, 2013), pursuant to the ESA. Because this permit would 
not modify any fishery operation and the effects of the fishery 
operations have been evaluated fully in accordance with NEPA, no 
additional NEPA analysis is required for this permit. Issuing the 
permit would have no additional impact to the human environment or 
effects on threatened or endangered species beyond those analyzed in 
these documents. NMFS now reviews the remaining requirements to issue a 
permit to take the subject listed species incidental to the CA thresher 
shark/swordfish drift gillnet fishery (>=14 inch mesh) and WA/OR/CA 
sablefish pot fisheries.

Recovery Plans

    Recovery Plans for humpback whales and sperm whales have been 
completed (see http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals). 
Accordingly, the requirement to have recovery plans in place or being 
developed 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. Further, section 118(c)(5)(A) 
provides that registration of vessels in fisheries should, after 
appropriate consultations, be integrated and coordinated to the maximum 
extent feasible with existing fisherman licenses, registrations, and 
related programs. Participants in the CA thresher shark/swordfish drift 
gillnet fishery (>=14 inch mesh) and WA/OR/CA sablefish pot fisheries 
already provide the information needed by NMFS to register their 
vessels for the incidental take authorization under the MMPA through 
the Federal groundfish limited entry permit process of the Federal 
Vessel Monitoring System. Therefore, vessel registration for an MMPA 
authorization is integrated through those programs in accordance with 
MMPA section 118.

Monitoring Program

    The CA thresher shark/swordfish drift gillnet fishery (>=14 inch 
mesh) has been observed since the early 1990s. Levels of observer 
coverage vary over years but are adequate to produce reliable estimates 
of M/SI of listed species (e.g., from 2000-2012, coverage ranged from 
approximately 12 to 22.9 percent). As part of the West Coast groundfish 
fishery and Magnuson-Stevens Fishery Conservation and Management Act 
objectives, the WA/OR/CA sablefish pot fishery, as managed under the 
groundfish FMP, and was observed in 2012 at approximately 73 percent. 
Accordingly, as required by MMPA section 118, a monitoring program is 
in place for both fisheries.

Take Reduction Plans

    Subject to available funding, MMPA section 118 requires the 
development and implementation of a Take Reduction Plan (TRP) in cases 
where a strategic stock interacts with a Category I or II fishery. The 
two stocks considered for this permit are designated as strategic 
stocks under the MMPA because they are listed as endangered under the 
ESA (MMPA section 3(19)(C)).
    In 1996, NMFS convened a take reduction team (TRT) to develop a TRP 
to address the incidental taking of several strategic marine mammal 
stocks, including CA/OR/WA stocks of sperm whales and humpback whales, 
in the CA thresher shark/swordfish drift gillnet fishery (>=14 in 
mesh). The Pacific Offshore Cetacean TRP was implemented through 
regulations in October, 1997 (62 FR 51813) and has been in place ever 
since. Although a TRP is in place for the gillnet fishery, there is not 
one in place for the pot fishery.
    The short- and long-term goals of a TRP are to reduce mortality and 
serious injury of marine mammals incidental to commercial fishing to 
levels below PBR and to a zero mortality rate goal, defined by NMFS as 
10 percent of PBR, respectively. MMPA section 118(b)(2) states that 
fisheries maintaining such M/SI levels are not required to further 
reduce their M/SI rates. However, the obligations to develop and 
implement a TRP are subject to the availability of funding. NMFS has 
insufficient funding available to simultaneously develop and implement 
TRPs for all stocks that interact with Category I or Category II 
fisheries. MMPA section 118(f)(3) (16 U.S.C. 1387(f)(3)) contains 
specific priorities for developing TRPs. As provided in MMPA section 
118(f)(6)(A) and (f)(7), NMFS used the most recent SARs and LOF as the 
basis to determine its priorities for establishing TRTs and developing 
TRPs. Through this process, NMFS evaluated the CA/OR/WA stock of 
humpback whales and the WA/OR/CA sablefish pot fishery and identified 
the level of interactions as a lower priority compared to other marine 
mammal stocks and fisheries for establishing TRTs, based on population 
trends of the stock and M/SI levels incidental to that commercial 
fishery. In addition, NMFS continues to collect data to categorize 
fixed gear fisheries and assess risk to large whales off the U.S. west 
coast. Accordingly, given these factors and NMFS' priorities, 
implementation of the developing TRP for the WA/OR/CA sablefish pot 
trap fishery and other similar Category II fisheries will defer further 
development of a TRP for these fisheries under section 118 as other 
stocks/fisheries are a higher priority for any available funding for 
establishing new TRTs.

Current Permit

    As noted in the summary above, all of the requirements to issue a 
permit to the following Federally-authorized fisheries have been 
satisfied: the CA thresher shark/swordfish DGN fishery ([gteqt]14 inch 
mesh) and WA/OR/CA sablefish pot fishery. Accordingly, NMFS hereby 
amends the permit to participants in the Category I CA thresher shark/
swordfish DGN fishery (>=14 inch mesh) fishery for the taking of CA/OR/
WA humpback

[[Page 22713]]

whales and CA/OR/WA sperm whales, and participants in the Category II 
WA/OR/CA sablefish pot fishery for the taking of CA/OR/WA stock of 
humpback whales, incidental to the fisheries' operations. As noted 
under MMPA section 101(a)(5)(E)(ii), no permit is required for vessels 
in Category III fisheries. For incidental taking of marine mammals to 
be authorized in Category III fisheries, M/SI must be reported to NMFS. 
If NMFS determines at a later date that incidental M/SI from commercial 
fishing is having more than a negligible impact on the CA/OR/WA stocks 
of humpback or sperm whales, NMFS may use its emergency authority under 
MMPA section 118 to protect the stock and may modify the permit issued 
herein.
    MMPA section 101(a)(5)(E) requires NMFS to publish in the Federal 
Register a list of fisheries that have been authorized to take 
threatened or endangered marine mammals. A list of such fisheries was 
most recently published on October 16, 2014 (79 FR 62105), which 
authorized the taking of threatened or endangered marine mammals 
incidental to the Hawaii deep-set and shallow-set longline fisheries. 
With issuance of this current amended permit, NMFS is not adding any 
fisheries to this list (Table 1).

  Table 1--List of Fisheries Authorized To Take Specific Threatened and
  Endangered Marine Mammals Incidental to Commercial Fishing Operations
------------------------------------------------------------------------
                                                         Marine mammal
             Fishery                   Category              stock
------------------------------------------------------------------------
HI deep-set (tuna target)         I.................  Humpback whale,
 longline.                                             CNP stock.
                                                      Sperm whale,
                                                       Hawaii stock.
                                                      False killer
                                                       whale, MHI IFKW
                                                       stock.
CA thresher shark/swordfish       I.................  Fin whale, CA/OR/
 drift gillnet fishery (>14 in                         WA stock.
 mesh).                                               Humpback whale, CA/
                                                       OR/WA stock.
                                                      Sperm whale, CA/OR/
                                                       WA stock.
HI shallow-set (swordfish         II................  Humpback whale,
 target) longline/set line.                            CNP stock.
AK Bering Sea/Aleutian Islands    II................  Steller sea lion,
 flatfish trawl.                                       Western U.S.
                                                       stock.
AK Bering Sea/Aleutian Island     II................  Fin whale, NEP
 pollock trawl.                                        stock.
                                                      Steller sea lion,
                                                       Western U.S.
                                                       stock.
AK Bering Sea sablefish pot.....  II................  Humpback whale,
                                                       WNP stock.
                                                      Humpback whale,
                                                       CNP stock.
AK Bering Sea/Aleutian Islands    II................  Steller sea lion,
 Pacific cod longline fisheries.                       Western U.S.
                                                       stock.
WA/OR/CA sablefish pot fishery..  II................  Humpback whale, CA/
                                                       OR/WA stock.
------------------------------------------------------------------------

Comments and Responses

    NMFS received letters containing comments from three organizations, 
the Marine Mammal Commission (Commission), the Humane Society of the 
United States (HSUS), and the Center for Biological Diversity. NMFS 
also received two letters from private citizens.
    Comment 1: The Commission briefly summarized NMFS' findings for the 
proposed permit and agreed with NMFS' analyses and actions proposed for 
the CA/OR/WA humpback whale stock and has no further comments or 
recommendations pertaining to that stock.
    Response: NMFS appreciates the Commission's comment and agrees with 
issuing the permit as required by the MMPA.
    Comment 2: The Commission recommended that NMFS be explicit in 
future negligible impact determinations and stock assessment reports 
using a non-standard averaging period about the factors it considered 
and the quantitative or qualitative criteria used to decide whether 
substantial and significant changes in the system consisting of the 
fishery and the CA/OR/WA sperm whale stock have or have not occurred. 
Further, the Commission recommended that NMFS define the circumstances 
under which non-standard averaging periods are appropriate. The 
Commission noted that the shift toward a longer-term view of the CA/OR/
WA sperm whale stock and its interactions with the CA thresher shark/
swordfish drift gillnet fishery (>=14 in mesh) is appropriate but has 
risk when averaging mortality and serious injury over longer periods of 
time relative to NMFS' ability to detect and respond to significant 
changes in the sperm whale bycatch rate.
    Response: The guidelines for preparing marine mammal stock 
assessments (GAMMS) provide a general recommendation to pool bycatch 
over a period of 5 years, but also note that: ``It is suggested that 
mortality estimates could be averaged over as many years necessary to 
achieve a CV of less than or equal to 0.3, but should usually not be 
averaged over a time period of more than the most recent 5 years for 
which data have been analyzed. However, information that is more than 5 
years old should not be ignored if it is the most appropriate 
information available in a particular case.'' (NMFS 2005). However, the 
guidance for 5-year averaging is based on bycatch being a relatively 
common event with adequate sample sizes and sufficient observer 
coverage. Pooling over longer periods is acceptable, if additional 
years accurately represent the current state of the fisheries and their 
inclusion reduces estimation bias. Two major factors were considered in 
using a pooling period in excess of 5 years: (1) Demonstration that the 
five-year period used in most stock assessments is itself subjective 
and is insufficient to generate unbiased estimates of bycatch for rare 
events (Carretta and Moore 2014), and (2) recognition that a fishery 
closure was implemented in 2001 that limits fishing spatially and 
seasonally to areas that represent lower bycatch risk to sperm whales. 
Thus, bycatch is pooled from 2001 to 2013, to reflect current fishing 
practices and current fishing effort. Both considerations are outlined 
in the draft 2014 marine mammal stock assessment for CA/OR/WA sperm 
whales (Carretta et al. 2014b). Alternatively, one may use models that 
pool >5 years of bycatch data to obtain statistically robust and 
unbiased bycatch rate estimates and apply these to individual years. 
NMFS has previously done this for other species, such as harbor 
porpoise (Orphanides 2009).
    NMFS appreciates the Commission's support for using the longer time 
frame for evaluating the CA thresher shark/swordfish drift gillnet 
fishery ([gteqt]14 in mesh) interactions with the CA/OR/WA sperm whale 
stock. NMFS acknowledges the Commission's concern regarding the use of 
longer-term data in the case of rare bycatch events (i.e., where the 13 
years used to compute the mortality and serious

[[Page 22714]]

injury rate have several years where recorded bycatch is zero and the 
influence those zeros have on the mean). However, Carretta and Moore 
(2014) determine that the post-2000 time period best represents the 
current spatial state of the fishery and use the same time period to 
calculate mean annual bycatch estimate for the CA/OR/WA stock of sperm 
whales, consistent with recommendations in the GAMMS. Annual estimates 
of bycatch events in the fishery, and subsequent longer term averaging 
of those data, would necessitate an evaluation that the conditions 
supporting the use of the longer term period are still valid; for 
example, that fishery characteristics are still constant or relatively 
unchanged. NMFS is mindful that increases in rate of expected annual 
bycatch could be a signal that something is changing in the system and 
further action is needed.
    Comment 3: The Commission recommended that NMFS continue to monitor 
the CA thresher shark/swordfish drift gillnet fishery ([gteqt]14 in 
mesh) and if the observed or reported mortality and serious injury of 
sperm whales exceeds the level specified in the Incidental Take 
Statement (the Commission is referencing the Incidental Take Statement 
in the Biological Opinion issued on May 2, 2013), that the following 
occur: (1) Reinitiation of formal consultation; (2) a reassessment of 
the MMPA negligible impact; and, (3) reconvene the Pacific Offshore 
Take Reduction Team (POCTRT) to consider whether additional measure are 
necessary to reduce the probability of interactions.
    Response: The CA thresher shark/swordfish DGN fishery ([gteqt]14 
inch mesh) has been observed by NMFS-certified observers since the 
early 1990s. NMFS targets 20% observer coverage in this fishery and 
levels vary over time but are adequate to produce reliable estimates of 
mortality and serious injury of marine mammals. If mortality or serious 
injury exceeded the level specified in the Incidental Take Statement of 
the Biological Opinion issued by NMFS on May 2, 2013, the following 
would occur, as is standard practice: (1) Reinitation of consultation 
under Section 7 of the Endangered Species Act, which is described in 
Section XI, titled Reinitiation Notice of the Biological Opinion; (2) 
Reevaluation of the negligible impact determination, although no change 
may be necessary; and, (3) Reconvening the POCTRT, if appropriate (but 
note that an in-person meeting would be subject to the availability of 
funding).
    Comment 4: The Commission requested that NMFS further justify its 
negligible impact determination for sperm whales under Criterion 3 
given the requirement of ``certainty of data'' that the population is 
stable or increasing, given the substantial uncertainty regarding the 
population trend.
    Response: NMFS used the best available science in making the 
negligible impact determination. Moore and Barlow (2014) report that 
the abundance of sperm whales appeared stable from 1991 to 2008, but 
that any reliable conclusions on trends could not be made for the whole 
population because the precision of estimated growth rates was poor. 
However, they also reported that trends in the detection of single 
animals (presumably large, solitary males) apparently doubled over this 
time period. The authors could not determine if the apparent increase 
in sightings comprising single animals reflected an increase in the 
number of adult male sperm whales in the population or merely increased 
use of the U.S. west coast waters by adult males in recent years. 
Therefore, because the stock is not decreasing, it is considered to be 
either stable or increasing.
    Comment 5: The Commission requested that NMFS review and improve 
the criteria for making a negligible impact determination before any 
more such determinations are issued.
    Response: NMFS agrees that the criteria for establishing a 
negligible impact determination under section 101(a)(5)(E) of the MMPA 
should be reviewed and appreciates the Commission's willingness to work 
with NMFS to review and, if necessary, modify the criteria. NMFS 
appreciates the Commission's recommendation to refrain from issuing 
more permits until new criteria are established; however, given the 
time it would take to develop criteria, solicit public review and 
comment, and issue the final criteria, NMFS will still need to evaluate 
fisheries that are taking threatened or endangered marine mammals and, 
if a negligible impact determination can be made for those fisheries, 
issue a permit under MMPA 101(a)(5)(E).
    Comment 6: The Humane Society of the United States (HSUS) expressed 
concern with NMFS' use of a PBR for sperm whales that was from the 
Moore and Barlow (2014) paper as it differs substantially from the PBR 
published in the 2013 SAR (i.e., 1.5 in the 2013 SAR vs. 2.7 in Moore 
and Barlow 2014). Additionally, NMFS' proposal to calculate the annual 
average serious injury and mortality using 13 years of data was based 
on a novel approach in a non-peer reviewed tech memo (Carretta and 
Moore 2014). HSUS stated that it was inappropriate for NMFS to rely 
upon estimates of mortality that are calculated in a manner that 
differs from traditional methods used in the SARs and has not undergone 
public scrutiny.
    Response: NMFS acknowledges that there was a difference in the PBR 
estimate used in the negligible impact determination for the CA/OR/WA 
sperm whale stock when comparing Moore and Barlow's (2014) estimate of 
2.7 to the most recent final SAR (PBR for the CA/OR/WA sperm whale 
stock is 1.5; Carretta et al. 2014a). The revised negligible impact 
determination relies upon the PBR for the CA/OR/WA sperm whale stock 
based on Moore and Barlow (2014) and is included in the draft 2014 SAR 
(Carretta et al. 2014b), which is publically available for review and 
comment (80 FR 4881, January 29, 2015).
    Regarding use of the 13-year timeframe, we refer to our response to 
Comment 2. NMFS must use the best available scientific information in 
making its determination. This information is not limited to just what 
has been published in SARs, but information that has been published or 
otherwise made available and that NMFS determines represents the best 
information to use. NOAA's Southwest Fisheries Science Center uses the 
NOAA Technical Memorandum series to issue scientific and technical 
publications. These manuscripts have been peer reviewed and edited, and 
documents published in this series may be cited in the scientific and 
technical literature. Additionally, these analyses were considered at 
the 2014 Pacific Science Review Group meeting and were reviewed and 
accepted by that Group.
    Comment 7: Regarding the CA/OR/WA stock of sperm whales, HSUS 
pointed out that the Federal Register Notice (79 FR 50626; August 25, 
2014) proposing a negligible impact determination includes a statement 
that the paper by Moore and Barlow ``suggest[s] that the revised 
abundance estimates are higher and more stable across years than 
currently published values'' and NMFS assumes an increasing trend. HSUS 
indicates that this assumption lacks important caveats that are stated 
in the Moore and Barlow paper such as the authors ``were unable to 
precisely estimate overall abundance trends for sperm whales in the 
study area.'' Further ``whether this trend reflects a population-level 
increase in adult male abundance or merely increased use of the study 
area by adult males is not possible to say from the data'' and go on to 
say that the authors

[[Page 22715]]

were ``unable to obtain good estimates of abundance trends for the 
entire California-Oregon-Washington stock of sperm whales.''
    Response: NMFS did not assume an increasing trend. We assumed, 
based on the best available science, that sperm whale abundance was not 
decreasing: therefore, it must either be stable or increasing. Refer to 
our response in Comment 4 regarding the abundance and trend for the CA/
OR/WA sperm whale stock. Because of the information provided in Moore 
and Barlow (2014) on the abundance of male sperm whales and the 
uncertainty in the cause of those results (e.g., whether this trend 
reflects a population-level increase in adult male abundance or merely 
increased use of the study area by adult males), we did not separate 
our analysis by gender but assumed that the stock was either stable or 
increasing. We further acknowledge that the true stock size may be 
larger, because not all animals are in U.S. waters when surveys are 
conducted. Although there will always be some uncertainty relative to 
the population abundance of sperm whales (as there is always some 
inherent uncertainty in any population estimate), the apparent trend 
for sperm whales in the Pacific Ocean is stable or increasing, and this 
is occurring even with current levels of mortality and serious injury.
    Comment 8: HSUS referenced the Pacific Fishery Management Council's 
(PFMC) consideration of imposing additional measures on the CA thresher 
shark/swordfish DGN fishery ([gteqt]14 inch mesh) that appear to be 
necessary to assure that the fishery does not repeat the events of 2010 
in which 2 sperm whales suffered mortality or serious injury. HSUS 
maintains that a negligible impact determination is premature at this 
time because management measures have not substantively changed since 
the takes in 2010 and the PFMC itself believes that there is a need to 
impose caps and other management measure to ensure that takes are 
sustainable.
    Response: The PFMC met September 12-17, November 14-19, 2014, and 
March 6-12, 2015, to deliberate management measures, including hard 
caps (or limits on the number of animals that can be taken in the 
fishery). The PFMC has directed its Highly Migratory Species management 
team to consider hard caps, but the management team has not developed 
recommendations at this time. NMFS cannot predict what the PFMC 
regulatory decisions may be, but at this time, we are able to make a 
negligible impact determination and satisfy the requirements under 
Criterion 3 for the CA/OR/WA sperm whale stock. In addition, under 
Section 118 of the MMPA, take reduction plans are designed to recover 
and prevent the depletion of strategic marine mammal stocks that 
interact with Category I and II fisheries. The goal of the Pacific 
Offshore Cetacean Take Reduction Plan is to reduce serious injuries and 
deaths of several marine mammal stocks incidental to the CA thresher 
shark/swordfish drift gillnet fishery ([gteqt]14 in mesh).
    Comment 9: One member of the public stated concern that the 
negligible impact determination is not precautionary and deviates from 
well-established methods. They requested that NMFS provide more 
justification and conduct more research before the permit can be 
evaluated properly.
    Response: Regarding pooling of bycatch data, see response to 
Comment 2. NOAA's ability to conduct research is dependent on funding 
and resources; however, the NMFS Southwest Fisheries Science Center 
recently conducted a research cruise called the California Current 
Cetacean and Ecosystem Assessment Survey, from August 5 to December 10, 
2014, that surveyed the U.S. Exclusive Economic Zone and beyond. It is 
expected that results from this survey will provide updated information 
on marine mammal stocks in this area.
    Comment 10: One individual stated that without any new data, NMFS 
is reversing its 2013 conclusion that emergency measures were necessary 
to ensure a negligible impact. Specifically, the use of the longer-time 
series to inflate sperm whale estimates far above what have been 
observed in recent surveys (for example, the most recent 2008 abundance 
point estimate is only 300 whales) and is deflating the estimated 
bycatch mortality by adding years of data in with no bycatch was 
observed. Further, the commenter stated that the proposed protections 
do not go far enough to protect sperm whales and the fishery should not 
be permitted to operate without protections that are at least as strong 
as the emergency measures put in place last year. It was requested that 
NMFS consider immediately reinstituting hard caps to protect sperm 
whales in the drift gillnet fishery.
    Response: NMFS appreciates the comment and references its responses 
to Comments 2 and 5. Additionally, NMFS is not reversing its 2013 
conclusion, rather we are amending it because since that time, there 
have been significant changes in the information and conditions used to 
make the negligible impact determination on September 4, 2013 (78 FR 
54553). This MMPA 101(a)(5)(E) permit amends the previously issued 
permit, updates the information on the known biological and ecological 
data on sperm whales and humpback whales, and updates information on 
human-caused mortality and serious injury. The emergency rule was 
temporary and; therefore, when the new information became available, 
NMFS evaluated it and determined that the previous negligible impact 
analysis should be amended, while maintaining the same expiration date 
of September 4, 2016 for the permit.
    Fisheries-related mortality and serious injury is a rare event for 
sperm whales. Given observer coverage of approximately 15%, the annual 
estimate of bycatch will always be either zero (if none observed) or at 
least 7 (if [gteqt]1 observed), for estimates made using ratio methods. 
If the true average value for mortality and serious injury is >0 but 
less than a few animals per year, and if observer coverage generally 
remains <20%, then multiple years of data need to be pooled to for 
unbiased estimation of a mean annual rate (Carretta and Moore 2014). 
Pooling more years reduces bias and provides increased precision of 
estimates and thus, a better estimate of the long-term annual mortality 
and serious injury, which is what should be compared to PBR (barring 
changes to the fishery that could result in increased interaction rates 
not represented by historical data). NMFS has previously done this type 
of bycatch analysis for other species, such as loggerhead sea turtles 
(Murray 2006) and harbor porpoise (Orphanides 2009). NMFS acknowledges 
the commenter's concern regarding the use of longer-term data in the 
case of rare bycatch events (i.e., where the 13 years used to compute 
the mortality and serious injury rate have several years where recorded 
bycatch is zero) and refers back to our response in Comment 2. 
Regarding hard caps, we refer to the response to Comment 7. The 
negligible impact determination and permit is issued under section 
101(a)(5)(E) of the MMPA, which is separate from the PFMC's 
deliberations.

    Dated: April 17, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-09447 Filed 4-22-15; 8:45 am]
 BILLING CODE 3510-22-P