[Federal Register Volume 86, Number 86 (Thursday, May 6, 2021)]
[Notices]
[Pages 24384-24390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09569]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA723]


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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

[[Page 24385]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice.

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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing 
permits for a period of three years to authorize the incidental, but 
not intentional, take of specific Endangered Species Act (ESA)-listed 
marine mammal species or stocks under the Marine Mammal Protection Act 
(MMPA), in certain U.S. commercial fisheries.

DATES: These permits are effective for a three-year period beginning 
May 6, 2021.

ADDRESSES: Reference materials for these permits, including the final 
negligible impact determinations, are available on the internet at 
https://www.fisheries.noaa.gov/action/negligible-impact-determinations-and-mmpa-section-101a5E-authorization-commercial or http://www.regulations.gov, identified by Docket Number NOAA-NMFS-2020-0096. 
Other supporting information is available on the internet including: 
recovery plans for the ESA-listed marine mammal species, https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act; MMPA List of Fisheries, 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables; the most recent Marine Mammal Stock 
Assessment Reports (SARs) by region, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region, and stock, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock; and Take Reduction Teams and Plans, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.

FOR FURTHER INFORMATION CONTACT: Suzie Teerlink, NMFS Alaska Region, 
(907) 586-7240, [email protected]; Diana Kramer, NMFS Pacific 
Islands Region, (808) 725-5167, [email protected]; Kara Shervanick, 
NMFS Southeast Region, (727) 824-5350, [email protected]; or 
Caroline Good, NMFS Office of Protected Resources, (301) 427-8402, 
[email protected].

SUPPLEMENTARY INFORMATION: The MMPA requires NMFS to authorize the 
incidental take of ESA-listed marine mammals in commercial fisheries 
provided it can make the following determinations: (1) The incidental 
mortality and serious injury (M/SI) from commercial fisheries will have 
a negligible impact on the affected species or stocks; (2) a recovery 
plan for all affected species or stocks of threatened or endangered 
marine mammals has been developed or is being developed; and (3) where 
required under MMPA section 118, a take reduction plan has been 
developed or is being developed, a monitoring program is implemented, 
and vessels participating in the fishery are registered. We have made 
the determination that certain commercial fisheries meet these three 
requirements and are issuing permits to these fisheries to authorize 
the incidental take of ESA-listed marine mammal species or stocks under 
the MMPA for a period of 3 years. We are also providing a list of 
commercial fisheries that, based on their level of M/SI of ESA-listed 
marine mammal species, do not require authorization under MMPA 
101(a)(5)(E) so long as any incidental mortality or injury is reported.

Background

    The MMPA List of Fisheries (LOF) classifies each commercial fishery 
as a Category I, II, or III fishery based on the level of mortality and 
injury of marine mammals occurring incidental to each fishery as 
defined in 50 CFR 229.2. Category I and II fisheries must register with 
NMFS and are subsequently authorized to incidentally take marine 
mammals during commercial fishing operations. However, that 
authorization is limited to those marine mammals that are not listed as 
threatened or endangered under the ESA. Section 101(a)(5)(E) of the 
MMPA, 16 U.S.C. 1371, states that NMFS, as delegated by the Secretary 
of Commerce, for a period of up to 3 years shall allow the incidental, 
but not intentional, taking of marine mammal stocks designated as 
depleted because of their listing as an endangered species or 
threatened species under the ESA, 16 U.S.C. 1531 et seq., by persons 
using vessels of the United States 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 M/SI from 
commercial fisheries will have a negligible impact on the affected 
species or stock; (2) a recovery plan has been developed or is being 
developed for such species or stock 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.
    The LOF includes a list of marine mammal species or stocks 
incidentally killed or injured in each commercial fishery. We 
originally evaluated ESA-listed stocks or species documented on the 
2020 MMPA LOF as killed or seriously injured following NMFS' Procedural 
Directive 02-238 ``Process for Distinguishing Serious from Non-Serious 
Injury of Marine Mammals.'' Based on this evaluation, we proposed to 
issue permits under MMPA section 101(a)(5)(E) to vessels registered in 
five Category I or Category II commercial fisheries, as classified on 
the final 2020 MMPA LOF, to incidentally kill or seriously injure 
individuals from specific ESA-listed marine mammal stocks (85 FR 62709, 
October 5, 2020). Since our original assessment, the 2021 final MMPA 
LOF published on January 14, 2021 (86 FR 3028) and became effective on 
February 16, 2021. The 2021 LOF reflects new information on marine 
mammal incidental mortality and serious injury in commercial fisheries, 
which we incorporated in our updated assessment. The 2021 LOF removed 
one of the stocks (Central North Pacific stock of humpback whale) from 
the list of species/stocks incidentally killed or injured in the 
Category II Alaska Bering Sea, Aleutian Islands Pollock trawl fishery 
that we proposed to include on the list of authorized stocks to be 
taken incidental to fishing operations in this fishery (85 FR 62709, 
October 5, 2020). Thus, we have removed the Central North Pacific stock 
of humpback whale for the Alaska Bering Sea, Aleutian Islands pollock 
trawl fishery from the final list of commercial fisheries authorized to 
take specific threatened and endangered marine mammals incidental to 
fishing operations (see Table 1 below).

[[Page 24386]]



Table 1--List of Commercial Fisheries Authorized To Take (M/SI) Specific
     Threatened and Endangered Marine Mammals Incidental to Fishing
                               Operations
------------------------------------------------------------------------
                                                     ESA-listed marine
       Commercial fishery         LOF  category        mammal stock
------------------------------------------------------------------------
Atlantic Ocean, Caribbean, Gulf  I                Sperm whale, Northern
 of Mexico large pelagics                          Gulf of Mexico.
 longline.
HI deep-set longline/Western     I                False killer whale,
 Pacific pelagic longline (HI                      Main HI Islands
 deep-set component).                              Insular; Humpback
                                                   whale, Central North
                                                   Pacific.
AK Bering Sea, Aleutian Islands  II               Bearded seal, Alaska;
 flatfish trawl.                                   Humpback whale,
                                                   Western North
                                                   Pacific; Ringed seal,
                                                   Alaska; Steller sea
                                                   lion, Western U.S.
AK Bering Sea, Aleutian Islands  II               Bearded seal, Alaska;
 pollock trawl.                                    Steller sea lion,
                                                   Western U.S.
AK Gulf of Alaska, sablefish     II               Sperm whale, North
 longline.                                         Pacific.
------------------------------------------------------------------------

    Category III fisheries are those commercial fisheries that have a 
remote likelihood of or no known incidental mortality or serious injury 
of marine mammals (MMPA section 118(c)(1)(A)(iii)). All commercial 
fisheries classified as Category III on the current LOF do not require 
MMPA 101(a)(5)(E) authorization, so long as any mortality or injury of 
marine mammals incidental to their operations is reported pursuant to 
MMPA section 118(e). Furthermore, per NMFS' Procedural Directive 02-
204-02 (procedural directive), ``Criteria for Determining Negligible 
Impact under MMPA section 101(a)(5)(E)'' (NMFS 2020), NMFS considers 
such Category III fisheries to have a negligible impact on that marine 
mammal stock or species. Thus, we incorporate by reference all Category 
III fisheries included in the 2021 MMPA LOF (86 FR 3028, January 14, 
2021).
    In addition, for the purposes of MMPA section 101(a)(5)(E), 
commercial fisheries classified as Category I or II on the LOF solely 
because of incidental M/SI of non-ESA-listed marine mammals meet the 
definition of a Category III commercial fishery with respect to ESA-
listed stocks or species because the fishery has a remote likelihood of 
or no known incidental M/SI of ESA-listed marine mammals. Based on the 
2020 MMPA LOF, we previously determined that two Category II commercial 
fisheries, the AK Bering Sea, Aleutian Islands Pacific cod longline and 
the HI shallow-set longline/Western Pacific pelagic longline (HI 
shallow-set component), met this criterion (85 FR 62709, October 5, 
2020). The HI shallow-set longline/Western Pacific pelagic longline (HI 
shallow-set component) changed classification from Category II to 
Category III in the 2021 LOF (86 FR 3028, January 14, 2021), but given 
that this was already considered a Category III commercial fishery with 
respect to ESA-listed stocks or species, this change in classification 
does not change our proposed determination. Thus, the AK Bering Sea, 
Aleutian Islands Pacific cod longline and the HI shallow-set longline/
Western Pacific pelagic longline (HI shallow-set component) commercial 
fisheries do not require 101(a)(5)(E) authorization.
    NMFS is evaluating other commercial fisheries not listed here for 
purposes of making a negligible impact determination (NID) and 
anticipates addressing such fisheries in future Federal Register 
notices. More information about the commercial fisheries listed above 
is available in the 2021 MMPA LOF (86 FR 3028, January 14, 2021) and on 
the internet at https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables.
    Tribal fisheries conducted pursuant to a treaty with the United 
States are not included on the LOF, and are not subject to the 
requirements of section 101(a)(5)(E). In the final rule implementing 
section 118 of the MMPA (60 FR 45086, August 30, 1995), NMFS concluded 
that treaty tribal fisheries are conducted under the authority of the 
Indian treaties; the MMPA's requirements in section 118 do not apply to 
treaty Indian tribal fisheries. In the 2010 final LOF (74 FR 58859, 
November 16, 2009), NMFS re-evaluated its 1995 conclusion to exempt 
tribal fisheries from the LOF (60 FR 45086, August 30, 1995) to 
determine whether it should be changed due to Anderson v. Evans 314 
F.3d 1006 (9th Cir. 2002)(court found that the MMPA applied to the 
Makah tribe's proposed whale hunt and the tribe's proposed whale 
takings were not excluded by the treaty with the tribe).
    NMFS considered, among other things, the public comments received 
on the proposed 2010 LOF and the 1994 amendments to the MMPA and 
accompanying legislative history, and determined that Anderson v. Evans 
did not alter NMFS' original analysis in the final rule implementing 
section 118 of the MMPA (60 FR 45086, August 30, 1995). Thus, tribal 
fisheries are not included on the LOF nor considered for MMPA 
101(a)(5)(E) authorizations. Additional information on NMFS' decision 
to continue to exclude tribal fisheries from the LOF is provided in the 
2010 LOF final rule (74 FR 58859, November 16, 2009). NMFS continues to 
work on a government-to-government basis with the affected treaty 
tribal governments to gather data on injuries and mortalities of marine 
mammals incidental to tribal fisheries.
    For each commercial fishery listed in Table 1 above, we reviewed 
the best available scientific information to determine if the fishery 
met the three requirements in MMPA 101(a)(5)(E) for issuing a permit. 
This information is included in the 2021 MMPA LOF (86 FR 3028, January 
14, 2021), the marine mammal SARs, recovery plans for these species 
(available at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act), 
and other relevant information, as detailed further in the documents 
describing the preliminary and final determinations supporting the 
permits (go to https://www.regulations.gov and enter ``NOAA-NMFS-2020-
0096'' in the search box).
    NMFS is in the process of reviewing humpback whale stock structure 
under the MMPA in light of the 14 Distinct Population Segments (DPSs) 
established under the ESA (81 FR 62259, September 8, 2016), based on 
the recently finalized Procedural Directive 02-204-03: ``Reviewing and 
Designating Stocks and Issuing Stock Assessment Reports under the 
Marine Mammal Protection Act'' (NMFS 2019). The DPSs that occur in 
waters under the jurisdiction of the United States do not align with 
the existing MMPA stocks. Some of the listed DPSs partially coincide 
with the currently defined stocks. Because we cannot manage one portion 
of an MMPA stock as ESA-listed and another portion of a stock as not 
ESA-listed, until such time as the MMPA stock designations are reviewed 
in light of the DPS designations, NMFS continues to use the existing 
MMPA stock structure for MMPA management purposes (e.g.,

[[Page 24387]]

selection of a recovery factor, stock status) and treats such stocks as 
ESA-listed if a component of that stock is listed under the ESA and has 
been incidentally killed or seriously injured incidental to the 
analyzed commercial fishery. NMFS considers humpback whale stock 
designation a high priority for revision. Once NMFS has completed our 
review, we will revise humpback whale stock designations in future 
SARs.

Basis for Determining Negligible Impact

    Prior to issuing a permit to take ESA-listed marine mammals 
incidental to commercial fishing, NMFS must determine if the M/SI 
incidental to commercial fisheries will have a negligible impact on the 
affected marine mammal species or stocks. NMFS satisfies this 
requirement by making a NID. Although the MMPA does not define 
``negligible impact,'' NMFS has issued regulations providing a 
qualitative definition of ``negligible impact,'' defined in 50 CFR 
216.103 as ``an impact resulting from the specified activity that 
cannot be reasonably expected to, and is not reasonably likely to 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.''

Criteria for Determining Negligible Impact

    Through scientific analysis, peer review, and public notice, NMFS 
developed a quantitative approach for determining negligible impact. We 
finalized the NMFS Procedural Directive 02-204-02 (directive): 
``Criteria for Determining Negligible Impact under MMPA section 
101(a)(5)(E)'' effective on June 17, 2020 (NMFS 2020). The procedural 
directive is available online at: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives. This 
procedural directive describes a process for determining whether 
incidental M/SI from commercial fisheries will have a negligible impact 
on ESA-listed marine mammal species/stocks (the first requirement 
necessary for issuing an MMPA section 101(a)(5)(E) permit as noted 
above).
    The procedural directive first describes the derivation of two 
Negligible Impact Thresholds (NIT), which represent levels of removal 
from a marine mammal species or stock. The first, Total Negligible 
Impact Threshold (NITT), represents the total amount of 
human-caused M/SI that NMFS considers negligible for a given stock. The 
second, lower threshold, Single NIT (NITs) represents the 
level of M/SI from a single commercial fishery that NMFS considers 
negligible for a stock. NITs was developed in recognition 
that some stocks may experience non-negligible levels of total human-
caused M/SI, but one or more individual fisheries may contribute a very 
small portion of that M/SI, and the effect of an individual fishery may 
be considered negligible.
    The directive describes a detailed process for using these NIT 
values to conduct a NID analysis for each fishery classified as a 
Category I or II fishery on the MMPA LOF. The NID process uses a two-
tiered analysis. The Tier 1 analysis first compares the total human-
caused M/SI for a particular stock to NITT. If 
NITT is not exceeded, then all commercial fisheries that 
kill or seriously injure the stock are determined to have a negligible 
impact on the particular stock. If NITT is exceeded, then 
the Tier 2 analysis compares each individual fishery's M/SI for a 
particular stock to NITs. If NITs is not 
exceeded, then the commercial fishery is determined to have a 
negligible impact on that particular stock. For transboundary, 
migratory stocks, because of the uncertainty regarding the M/SI that 
occurs outside of U.S. waters, we assume that total M/SI exceeds 
NITT and proceed directly to the Tier 2 NITs 
analysis. If a commercial fishery has a negligible impact across all 
ESA-listed stocks, then the first of three findings necessary for 
issuing an MMPA 101(a)(5)(E) permit to the commercial fishery has been 
met (i.e., a negligible impact determination). If a commercial fishery 
has a non-negligible impact on any ESA-listed stock, then NMFS cannot 
issue an MMPA 101(a)(5)(E) permit for the fishery to incidentally take 
ESA-listed marine mammals.
    These criteria rely on the best available scientific information, 
including estimates of a stock's minimum population size and human-
caused M/SI levels, as published in the most recent SARs and other 
supporting documents, as appropriate. Using these inputs, the 
quantitative negligible impact thresholds allow for straightforward 
calculations that lead to clear negligible or non-negligible impact 
determinations for each commercial fishery analyzed. In rare cases, 
robust data may be unavailable for a straightforward calculation, and 
the directive provides instructions for completing alternative 
calculations or assessments where appropriate.

Negligible Impact Determinations

    We evaluated the impact of each commercial fishery (listed in Table 
1 above) following the procedural directive, and, based on the best 
available scientific information, made NIDs. These NID analyses are 
presented in accompanying MMPA 101(a)(5)(E) determination documents 
that provide summaries of the information used to evaluate each ESA-
listed stock documented on the 2021 MMPA LOF as killed or injured 
incidental to the fishery. The final MMPA 101(a)(5)(E) determination 
documents are available at: https://www.fisheries.noaa.gov/action/negligible-impact-determinations-and-mmpa-section-101a5E-authorization-commercial or https://www.regulations.gov under Docket Number ``NOAA-
NMFS-2020-0096''. Based on the criteria outlined in the procedural 
directive, the most recent SARs, and the best available scientific 
information, NMFS has determined that the M/SI incidental to the five 
Category I and II commercial fisheries listed in Table 1 will have a 
negligible impact on the associated ESA-listed marine mammal stocks. 
Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied for these 
commercial fisheries.

Recovery Plans

    Recovery Plans for the ESA-listed species or stocks listed in Table 
1 have either been completed (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act) or are being developed. Accordingly, the 
requirement to have recovery plans in place or being developed is 
satisfied.

Take Reduction Plans

    Subject to available funding, MMPA section 118 requires the 
development and implementation of a Take Reduction Plan (TRP) for each 
strategic stock that interacts with a Category I or II fishery. The 
stocks considered for these permits are designated as strategic stocks 
under the MMPA because they, or a component of the stocks, are listed 
as threatened or endangered under the ESA (MMPA section 3(19)(C)).
    The short- and long-term goals of a TRP are to reduce M/SI of 
marine mammals incidental to commercial fishing to levels below the 
Potential Biological Removal (PBR) level for stocks and to an 
insignificant threshold, defined by NMFS as 10 percent of PBR, 
respectively. The obligations to develop and implement a TRP are 
subject to the availability of funding. MMPA section 118(f)(3) (16 
U.S.C. 1387(f)(3)) contains specific priorities for developing TRPs 
when funding is insufficient. NMFS has insufficient funding available 
to simultaneously develop and implement TRPs for all strategic stocks 
that interact with Category I or Category II fisheries.

[[Page 24388]]

As provided in MMPA section 118(f)(6)(A) and (f)(7), NMFS uses the most 
recent SARs and LOF as the basis to determine its priorities for 
establishing Take Reduction Teams (TRT) and developing TRPs. 
Information about NMFS' marine mammal TRTs and TRPs may be found at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.
    All of the evaluated fisheries listed in Table 1, for the affected 
marine mammal species or stocks, either have a TRP in place or, based 
on NMFS' priorities, implementation of a TRP is currently deferred 
under section 118 as other stocks/fisheries are a higher priority for 
any available funding for establishing new TRPs. Accordingly, the 
requirement under MMPA section 118 to have TRPs in place or in 
development is satisfied (see determinations supporting the permits 
available on the internet at https://www.fisheries.noaa.gov/action/negligible-impact-determinations-and-mmpa-section-101a5E-authorization-commercial or https://www.regulations.gov under docket number ``NOAA-
NMFS-2020-0096'').

Monitoring Program

    Under MMPA section 118(d), NMFS is to establish a program for 
monitoring incidental M/SI of marine mammals from commercial fishing 
operations. Each of the fisheries listed in Table 1 considered for 
authorization under MMPA section 101(a)(5)(E) is monitored by NMFS 
fishery observer programs. Accordingly, the requirement under MMPA 
section 118 to have a monitoring program in place is satisfied.

Vessel Registration

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

Conclusions for Permits

    Based on the above evaluation for each commercial fishery listed in 
Table 1 as it relates to the three requirements of MMPA 101(a)(5)(E), 
we hereby issue MMPA 101(a)(5)(E) permits to the commercial fisheries 
in Table 1 to authorize the incidental take of ESA-listed species or 
stocks during commercial fishing operations. If, during the 3-year 
authorization, there is a significant change in the information or 
conditions used to support any of these determinations, NMFS will re-
evaluate whether to amend or modify that specific authorization, after 
notice and opportunity for public comment, or potentially suspend or 
revoke the permit. If the authorization for an individual fishery in 
Table 1 changes for any reason during the 3-year period, the 
authorizations for the other commercial fisheries in Table 1 will 
continue unchanged and effective until the end of the 3-year period. As 
noted above, under MMPA section 101(a)(5)(E)(ii), no permit is required 
for vessels in Category III fisheries, or for the Category II 
commercial fishery listed above that meet the definition of a Category 
III commercial fishery with respect to ESA-listed species or stocks, so 
long as any incidental marine mammal mortality or injury is reported to 
NMFS pursuant to MMPA section 118(e).

Endangered Species Act Section 7 and National Environmental Policy Act 
Requirements

    ESA section 7(a)(2) requires Federal agencies to ensure that 
actions they authorize, fund, or carry out do not jeopardize the 
existence of any species listed under the ESA, or destroy or adversely 
modify designated critical habitat of any ESA-listed species. The 
effects of these commercial fisheries on ESA-listed marine mammals for 
which permits are proposed here, were analyzed in the appropriate 
Fishery Management Plan ESA section 7 Biological Opinions, and 
incidental take was exempted for those ESA-listed marine mammals for 
each of these fisheries as appropriate.
    The National Environmental Policy Act (NEPA) requires Federal 
agencies to evaluate the impacts of alternatives for their actions on 
the human environment. Because these proposed permits would not modify 
any fishery operation and the effects of the fishery operations have 
been evaluated in accordance with NEPA, no additional NEPA analysis 
beyond that conducted for the associated Fishery Management Plans is 
required for these permits. Issuing the proposed permits would have no 
additional impact on the human environment or effects on threatened or 
endangered species beyond those analyzed in these documents.

Comments and Responses

    NMFS received two comment letters on the proposed issuance of 
permits and underlying preliminary determinations. The Center for 
Biological Diversity, Defenders of Wildlife, the Humane Society of the 
United States, Humane Society Legislative Fund, and Whale and Dolphin 
Conservation (CBD et al.) opposed issuing the permits, while the Hawaii 
Longline Association (HLA) supported issuing the permits. Several 
comments addressed ESA-related elements outside the scope of the 
proposed actions and are not included here. Under section 7 of the ESA, 
biological opinions analyze the impact of fishery-related mortalities 
on ESA-listed marine mammals, including those species analyzed as part 
of negligible impact determinations. MMPA section 101(a)(5)(E) permits 
authorize take of ESA-listed marine mammals under the MMPA while 
biological opinions authorize take of ESA-listed marine mammals under 
the ESA. Only responses to substantive comments pertaining to the 
proposed permits and preliminary determinations under MMPA section 
101(a)(5)(E) are addressed below.
    Comment 1: CBD et al. incorporate their previous comments submitted 
on NMFS' draft ``Criteria for Determining Negligible Impact under MMPA 
Section 101(a)(5)(E),'' and reiterate NMFS' new approach to negligible 
impact determinations undermines key statutory protections for marine 
mammals protected as threatened or endangered under the ESA and 
disregards congressional intent that NMFS provide ESA-listed marine 
mammals with more protections than non-listed marine mammals.
    Response: NMFS received several comments on the draft ``Criteria 
for Determining Negligible Impact under MMPA Section 101(a)(5)(E) 
stating the directive was either overly precautionary or not 
precautionary enough. These comments were previously addressed in the 
response to comments (see Comment #4) on the draft ``Criteria for 
Determining Negligible Impact under MMPA Section 101(a)(5)(E).'' NMFS 
notes, that while we have used negligible impact determination criteria 
since 1999, these criteria were ``never formalized as an official 
agency policy.'' As such, to say we are changing or increasing its 
thresholds or reducing protections is inaccurate because these 
thresholds were never formally established. The full response to 
comments on the procedural directive is available at: https://www.fisheries.noaa.gov/action/criteria-determining-negligible-impact-under-mmpa-section-101a5e.
    Comment 2: CBD et al. assert that NMFS improperly equates 
negligible

[[Page 24389]]

impact to a stock's PBR level, using the Main Hawaiian Islands Insular 
stock of false killer whales as an example.
    Response: NMFS has previously responded to this broader comment in 
the responses to comments on the draft ``Criteria for Determining 
Negligible Impact under MMPA Section 101(a)(5)(E)'' procedural 
directive (see Comment #4). As noted, it is true that NITT 
is equivalent to PBR for an endangered stock if, and only if, the 
default Recovery Factor (Fr) is used in calculating PBR; but in all 
other cases (i.e., for threatened stocks and for any endangered stock 
not using the default Fr) NITT is less than PBR. Thus, 
NITT, and the negligible impact determination it informs, is 
afforded independent meaning. The full response to comments on the 
procedural directive is available at: https://www.fisheries.noaa.gov/action/criteria-determining-negligible-impact-under-mmpa-section-101a5e.
    Comment 3: CBD et al. comment that the negligible impact criteria 
fail to assess the implications of unknown or declining population 
trends for conformity with the underlying assumptions of PBR, 
specifically for North Pacific sperm whale, bearded seal, ringed seal, 
Northern Gulf of Mexico sperm whale, and Main Hawaiian Islands insular 
false killer whales. As such, the resulting determinations are 
arbitrary and improper.
    Response: Stocks or species with unreliable or unknown abundance 
trends do not necessarily deviate from the underlying assumptions of 
the PBR framework. Based on the most recent SARs and other available 
scientific information, the abundance trends for the North Pacific 
sperm whale, bearded seal, ringed seal, Northern Gulf of Mexico sperm 
whale, and Main Hawaiian Islands insular false killer whale are 
currently unknown. However, the lack of a clear abundance trend does 
not by itself indicate a stock does not conform to the PBR framework.
    For the North Pacific sperm whale, there are insufficient data for 
estimating abundance and several key uncertainties regarding the stock 
assessment. However, uncertainty regarding the stock's assessment does 
not necessarily mean the stock fails to conform to the PBR framework. 
Unlike SARs for stocks that may not conform to the PBR framework (e.g., 
Beluga Whale, Cook Inlet stock), the current North Pacific sperm whale 
SAR does not note any such concerns. If a species or stock's population 
dynamics are thought to not conform to the underlying assumptions of 
PBR, this would be addressed through the stock assessment process (NMFS 
2016). The draft NID for the North Pacific sperm whale erroneously 
indicated that the stock fails to conform to the PBR framework because 
we lack sufficient information; we have modified the final 
determination accordingly. This 101(a)(5)(E) authorization remains 
active for up to 3 consecutive years, but should new information become 
available it may be shortened or revoked if necessary.
    Comment 4: CBD et al. state that there is no recovery plan in place 
for the Main Hawaiian Islands (MHI) Insular false killer whale stock 
and without a recovery plan to address all potential anthropogenic 
impacts, allowing take would violate the precautionary principle. CBD 
et al. also state that no take should be authorized in the absence of a 
recovery plan for this stock.
    Response: Since publication of the proposed authorizations, NMFS 
published the MHI Insular False Killer Whale DPS Draft Recovery Plan, 
which may be accessed here: https://www.fisheries.noaa.gov/resource/document/draft-recovery-plan-main-hawaiian-islands-insular-false-killer-whale-distinct. Following review of public comment, which closed 
on December 15, 2020, NMFS anticipates finalizing the recovery plan and 
recovery implementation strategy for the MHI Insular false killer 
whale.
    Comment 5: CBD et al. note that none of the Alaska fisheries 
included in the proposed permits have TRPs in place and suggest they do 
not appear to be in development. CBD et al. point out that while NMFS 
has deferred establishment of TRTs for these fisheries to focus on 
establishing TRTs for other species or stocks that are a higher 
priority, the assessment of those species and stocks have not been made 
publicly available. CBD et al. believe that NMFS should not authorize 
take of ESA-listed species if a TRT is not in place, particularly where 
NMFS is not requiring additional mitigation measures to reduce the risk 
of entanglement through this permitting process.
    Response: MMPA section 118 provides the framework for addressing 
marine mammal interactions in commercial fisheries nationwide and 
includes various metrics and guidance for managing the take reduction 
program as a whole. As noted earlier in this notice, MMPA section 
118(f)(3) contains specific priorities for developing TRPs if 
insufficient funding is available to develop and implement TRPs for all 
applicable stocks and fisheries. NMFS has insufficient funding 
available to simultaneously develop and implement TRPs for all 
strategic stocks that interact with Category I or Category II 
fisheries. Thus, NMFS prioritizes which stocks and fisheries to address 
under a TRP. MMPA section 118(f) provides that if there is insufficient 
funding available to develop and implement a take reduction plan for 
stocks that interact with Category I and II fisheries, the Secretary 
shall give highest priority to the development of TRPs for species or 
stocks whose level of incidental mortality and serious injury exceeds 
PBR, that have small population size, and those that are declining most 
rapidly. As noted in the proposed permit, all stocks authorized to be 
incidentally taken under this permit are currently lower priorities for 
developing TRPs because of the low levels of M/SI incidental to 
commercial fishing compared to other marine mammal stocks and 
commercial fisheries.
    Comment 6: CBD et al. state that NMFS cannot reasonably conclude 
that the impact of the Alaska Bering Sea, Aleutian Islands flatfish 
trawl fishery on the Western North Pacific humpback whale stock is 
negligible because NMFS relies on outdated M/SI data for its 
determination.
    Response: The proposed negligible impact determination for the 
Alaska Bering Sea, Aleutian Islands flatfish trawl indicated that 
``recent M/SI'' data were unavailable to analyze for the Western North 
Pacific humpback whale stock. We have modified this phrasing in the 
final determination to more clearly indicate that recent M/SI data are 
available for this species but that no M/SI incidental to the Alaska 
Bering Sea, Aleutian Islands flatfish trawl fishery has been 
documented.
    Comment 7: CBD et al. disagree with NMFS that all Category III 
fisheries in the 2020 List of Fisheries are not subject to the ESA 
prohibition against incidentally taking marine mammals from endangered 
or threatened stocks, and counters that these Category III fisheries 
remain subject to the prohibition on take under the ESA unless and 
until take is authorized under one of the statutory processes 
enumerated by the ESA (e.g., an incidental take statement or incidental 
take permit).
    Response: We concur that all fisheries remain subject to ESA 
prohibitions on the incidental taking of marine mammals from endangered 
or threatened species. We have modified the relevant language in this 
notice to clarify that all fisheries remain subject to ESA prohibitions 
on the incidental taking of marine mammals from endangered or 
threatened stocks.
    Comment 8: CBD et al. comment that a Category III designation does 
not mean

[[Page 24390]]

that a fishery is unlikely to ``take'' an ESA-listed marine mammal, 
because any entanglement of an ESA-listed marine mammal constitutes a 
prohibited take under the ESA, regardless of whether it leads to 
mortality, and NMFS does not consider sub-lethal entanglements in 
categorizing fisheries.
    Response: For the purposes of MMPA 101(a)(5)(E)(i)(I), only 
incidental mortality and serious injury are considered when making a 
negligible impact determination.
    Comment 9: HLA agrees with NMFS' preliminary determinations that 
the HI deep-set longline/Western Pacific pelagic longline (HI deep-set 
component) has a ``negligible impact'' on the Central North Pacific 
humpback whale stock and the MHI Insular false killer whale stock. They 
also note there have been no interactions between the fishery and 
Central North Pacific humpback whales.
    Response: NMFS has finalized the NID for the HI deep-set longline/
Western Pacific pelagic longline (HI deep-set component). To clarify, 
there was at least one observed serious injury of a Central North 
Pacific humpback whale incidental to the Hawaii deep-set longline 
fishery in 2014. However, known humpback whale mortality and serious 
injury in Hawaii-based fisheries involved whales from the Central North 
Pacific stock as designated under the MMPA, which has been identified 
as the Hawaii DPS of humpback whales. The Hawaii DPS is not listed as 
threatened or endangered under the ESA. Because MMPA Section 
101(a)(5)(E) applies only to stocks designated as depleted because of 
their listing under the ESA, a Tier 2 analysis was not conducted for 
the Hawaii DPS.
    Comment 10: HLA agrees that for the MHI Insular false killer whale 
stock, the deep-set longline fishery satisfies the NID requirements of 
Tier 1 and further notes that Tier 2 is also satisfied, because the 
deep-set longline fishery's M/SI with the Insular false killer whale 
stock is 0.0 in the most recent SAR, which plainly falls below the 
Insular false killer whale stock's NITs value.
    Response: Based on the best available scientific information, the 
total human caused M/SI (including M/SI from the HI deep-set longline/
Western Pacific pelagic longline, HI deep-set component fishery) of MHI 
Insular false killer whales does not exceed NITT as part of 
a Tier 1 analysis. Therefore, as defined in NMFS Procedural Directive 
02-204-02, all commercial fisheries are considered to have a negligible 
impact on the stock, and no further analysis for individual fisheries, 
including a Tier 2 analysis, is required at this time (NMFS 2020).

References

National Marine Fisheries Service (NMFS). 2020. National Marine 
Fisheries Service Procedure 02-204-02: Criteria for Determining 
Negligible Impact under MMPA Section 101(a)(5)(E). 20 p. Available 
online: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives
National Marine Fisheries Service (NMFS). 2019. National Marine 
Fisheries Service Procedure 02-204-03: Reviewing and designating 
stocks and issuing Stock Assessment Reports under the Marine Mammal 
Protection Act. 9 p. Available online: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives
National Marine Fisheries Service (NMFS). 2016. National Marine 
Fisheries Service Procedure 02-204-01: Guidelines for preparing 
stock assessment reports pursuant to the 1994 amendments to the 
Marine Mammal Protection Act. 23 p. Available online: https://www.fisheries.noaa.gov/national/marine-mammal-protection/guidelines-assessing-marine-mammal-stocks
National Marine Fisheries Service (NMFS). 2014. National Marine 
Fisheries Service Procedure 02-238-01: Process for Distinguishing 
Serious from Non-Serious Injury of Marine Mammals. 42 p. Available 
online: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-policies-guidance-and-regulations

    Dated: May 3, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-09569 Filed 5-5-21; 8:45 am]
BILLING CODE 3510-22-P