[Federal Register Volume 86, Number 202 (Friday, October 22, 2021)]
[Notices]
[Pages 58641-58644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23047]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB449]


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

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

ACTION: Notice; request for comments.

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

DATES: Comments on this action and supporting documents must be 
received by November 8, 2021.

ADDRESSES: You may submit comments on the proposed permit and the 
preliminary determination supporting the permit, identified by NOAA-
NMFS-2021-0092, through the Federal e-Rulemaking Portal:
    1. Go to https://www.regulations.gov and enter NOAA-NMFS-2021-0092 
in the Search box.
    2. Click the ``Comment'' icon, and complete the required fields.
    3. Enter or attach your comments.
    Instructions: NMFS may not consider comments if they are sent by 
any other method, to any other address or individual, or received after 
the end of the comment period. Due to delays in processing mail related 
to COVID-19 and health and safety concerns, no mail, courier, or hand 
deliveries will be accepted. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    The preliminary determination supporting the permit is available on 
the internet at https://www.regulations.gov/docket/NOAA-NMFS-2021-0092. 
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; 2021 MMPA List of 
Fisheries (LOF), https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables; the most recent Marine Mammal 
Stock Assessment Reports (SAR) by region, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region, and stock, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock; and Take Reduction Teams and 
Plans, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.

FOR FURTHER INFORMATION CONTACT: Tina Fahy, NMFS West Coast Region, 
(562) 980-4023, [email protected]; or Jaclyn Taylor, NMFS Office 
of Protected Resources, (301) 427-8402, [email protected].

SUPPLEMENTARY INFORMATION: The MMPA requires NMFS to authorize the 
incidental take of ESA-listed marine mammals in commercial fisheries 
provided it can make the following determinations: (1) The incidental 
mortality and serious injury (M/SI) from commercial fisheries will have 
a negligible impact on the affected species or stocks; (2) a recovery 
plan for all affected species or stocks of threatened or endangered 
marine mammals has been developed or is being developed; 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 a 
preliminary determination that the WA/OR/CA sablefish pot fishery meets 
these three requirements and propose to issue a permit to the fishery 
to authorize the incidental take of ESA-listed marine mammal species or 
stocks under the MMPA for a period of three years. We solicit public 
comments on the proposed issuance of the permit and the underlying 
preliminary determination.

Background

    The MMPA LOF classifies each commercial fishery as a Category I, 
II, or III fishery based on the level of mortality and injury of marine 
mammals 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 three 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 evaluated 
ESA-listed stocks or species included on the 2021 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 propose to issue a permit under MMPA 
section 101(a)(5)(E) to vessels registered in the Category II WA/OR/CA 
sablefish pot fishery, as classified on the final 2021 MMPA LOF, to 
incidentally kill or seriously injure

[[Page 58642]]

the CA/OR/WA stock of humpback whale.
    NMFS will regularly evaluate other commercial fisheries for 
purposes of making a negligible impact determination (NID) and issuing 
MMPA section 101(a)(5)(E) authorizations with the annual LOF as new 
information becomes available. More information about the WA/OR/CA 
sablefish pot fishery 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.
    We reviewed the best available scientific information to determine 
if the WA/OR/CA sablefish pot fishery met the three requirements of 
MMPA section 101(a)(5)(E) for issuing a permit. This information is 
included in the 2021 MMPA LOF (86 FR 3028; January 14, 2021), the SAR 
for CA/OR/WA stock of humpback whale (available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports), the humpback whale recovery plan (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 document describing 
the preliminary determination supporting the permit (available at: 
https://www.regulations.gov/docket/NOAA-NMFS-2021-0092).
    NMFS is in the process of revising 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 revised 
in light of the ESA DPSs, NMFS continues to use the existing MMPA stock 
structure for MMPA management purposes (e.g., selection of a recovery 
factor, stock status) and treats such stocks as ESA-listed if a 
component of that stock is listed under the Act and overlaps with the 
analyzed commercial fishery.

Basis for Determining Negligible Impact

    Prior to issuing a MMPA 101(a)(5)(E) permit to take ESA-listed 
marine mammals incidental to commercial fishing, NMFS must determine if 
the M/SI incidental to commercial fisheries will have a negligible 
impact on the affected marine mammal species or stocks. NMFS satisfies 
this requirement by making a NID. Although the MMPA does not define 
``negligible impact,'' NMFS has issued regulations providing a 
qualitative definition of ``negligible impact,'' defined in 50 CFR 
216.103 as ``an impact resulting from the specified activity that 
cannot be reasonably expected to, and is not reasonably likely to 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.''

Criteria for Determining Negligible Impact

    NMFS relies on a quantitative approach for determining negligible 
impact detailed in NMFS Procedural Directive 02-204-02 (directive), 
``Criteria for Determining Negligible Impact under MMPA section 
101(a)(5)(E),'' which became effective on June 17, 2020 (NMFS 2020). 
The procedural directive is available online at: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives. This directive describes NMFS' process for 
determining whether incidental M/SI from commercial fisheries will have 
a negligible impact on ESA-listed marine mammal species/stocks (the 
first requirement necessary for issuing a MMPA section 101(a)(5)(E) 
permit as noted above).
    The directive first describes the derivation of two Negligible 
Impact Thresholds (NIT), which represent levels of removal from a 
marine mammal species or stock. The first, Total 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 a 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 a MMPA 101(a)(5)(E) permit for the fishery to incidentally take 
ESA-listed marine mammals.
    These NID criteria rely on the best available scientific 
information, including estimates of a stock's minimum population size 
and human-caused M/SI levels, as published in the most recent SARs and 
other supporting documents, as appropriate. Using these inputs, the 
quantitative negligible impact thresholds allow for straightforward 
calculations that lead to clear negligible or non-negligible impact 
determinations for each commercial fishery analyzed. In rare cases, 
robust data may be unavailable for a straightforward calculation, and 
the directive provides instructions for completing alternative 
calculations or assessments where appropriate.

Negligible Impact Determination

    We evaluated the impact of the WA/OR/CA sablefish pot fishery 
following the directive, and, based on the best available scientific 
information, made a draft NID. The NID analysis is presented in 
accompanying MMPA 101(a)(5)(E) determination document that provides 
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. An estimate of mean annual commercial fishery-related M/SI is 
available for the CA/OR/WA stock of humpback whale in the most recent 
SAR. The SAR also includes unattributed fishery-related M/SI for the

[[Page 58643]]

stock but not assigned to a specific commercial fishery. Because data 
are not currently available to assign the unattributed fishery-related 
M/SI to a specific commercial fishery, it was not accounted for in the 
NID analysis. The draft MMPA 101(a)(5)(E) determination document is 
available at: https://www.regulations.gov/docket/NOAA-NMFS-2021-0092. 
Based on the criteria outlined in the directive, the most recent SAR, 
and the best available scientific information, NMFS has determined that 
the M/SI incidental to the Category II WA/OR/CA sablefish pot fishery 
will have a negligible impact on the associated ESA-listed marine 
mammal stock. Accordingly, this MMPA 101(a)(5)(E) requirement is 
satisfied for the commercial fishery.

Recovery Plan

    The humpback whale recovery plan has been completed (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act). Accordingly, the 
requirement to have a recovery plan in place or being developed is 
satisfied.

Take Reduction Plan

    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 
stock considered for this permit is designated as a strategic stock 
under the MMPA because the stock, or a component of the stock, is 
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. As provided in 
MMPA section 118(f)(6)(A) and (f)(7), NMFS uses the most recent SAR 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.
    Based on NMFS' priorities, implementation of a TRP for the WA/OR/CA 
sablefish pot fishery is currently deferred under MMPA section 118 as 
other stocks/fisheries are a higher priority for any available funding. 
Accordingly, the requirement under MMPA section 118 to have TRPs in 
place or in development is satisfied (see preliminary determination 
supporting the permit available on the internet at https://www.regulations.gov/docket/NOAA-NMFS-2021-0092).

Monitoring Program

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

Vessel Registration

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

Conclusions for Proposed Permit

    Based on the above evaluation for the WA/OR/CA sablefish pot 
fishery as it relates to the three requirements of MMPA 101(a)(5)(E), 
we propose to issue a MMPA 101(a)(5)(E) permit to the commercial 
fishery to authorize the incidental take of ESA-listed species or 
stocks during commercial fishing operations. If, during the 3-year 
authorization, there is a significant change in the information or 
conditions used to support any of these determinations, NMFS will re-
evaluate whether to amend or modify the authorization, after notice and 
opportunity for public comment. NMFS solicits public comments on the 
proposed permit and the preliminary determination supporting the 
permit.

ESA 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 the WA/OR/CA sablefish pot fishery on ESA-listed marine 
mammals for which a permit is proposed here were analyzed in the 
appropriate ESA section 7 Biological Opinion on the commercial fishery, 
and incidental take was exempted for those ESA-listed marine mammals 
for the fishery.
    Under section 7 of the ESA, Biological Opinions quantify the 
effects of the proposed action on ESA-listed species and their critical 
habitat and, where appropriate, authorize anticipated future take of 
ESA-listed species as specified in the incidental take statement. Under 
MMPA section 101(a)(5)(E), NMFS analyzes previously documented M/SI 
incidental to commercial fisheries through the negligible impact 
determination process, and when the necessary findings can be made, 
issues a MMPA section 101(a)(5)(E) permit that allows for an 
unspecified amount of incidental taking of specific ESA-listed marine 
mammal stocks while engaging in commercial fishing operations. Thus, 
the applicable standards and resulting analyses under the MMPA and ESA 
differ, and as such, may not always align. The National Environmental 
Policy Act (NEPA) requires Federal agencies to evaluate the impacts of 
alternatives for their actions on the human environment. Because the 
proposed permit would not modify any fishery operation and the effects 
of the fishery operations have been evaluated in accordance with NEPA, 
no additional NEPA analysis beyond that conducted for the associated 
Fishery Management Plans is required for the permit. Issuing the 
proposed permit would have no additional impact on the human 
environment or effects on threatened or endangered species beyond those 
analyzed in these documents.

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-

[[Page 58644]]

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: October 19, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-23047 Filed 10-21-21; 8:45 am]
BILLING CODE 3510-22-P