[Federal Register Volume 86, Number 239 (Thursday, December 16, 2021)]
[Notices]
[Pages 71423-71427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27278]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB522]


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 
California (CA) thresher shark/swordfish drift gillnet fishery and the 
corresponding high seas component of the fishery as defined on the MMPA 
List of Fisheries as the Pacific highly migratory species drift gillnet 
fishery.

DATES: Comments on this action and supporting documents must be 
received by January 18, 2022.

ADDRESSES: You may submit comments on the proposed permit and the 
preliminary determination supporting the permit, identified by NOAA-
NMFS-2021-0105, through the Federal e-Rulemaking Portal:
    1. Go to https://www.regulations.gov and enter NOAA-NMFS-2021-0105 
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

[[Page 71424]]

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-2021-0105. 
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 CA thresher shark/swordfish drift 
gillnet/Pacific highly migratory species drift gillnet 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 (CA/OR/WA stock of humpback whale and CA/OR/WA stock of sperm 
whale) 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 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 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 final 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 CA 
thresher shark/swordfish drift gillnet/Pacific highly migratory species 
drift gillnet fishery, as classified on the final 2021 MMPA LOF, to 
incidentally kill or seriously injure the CA/OR/WA stock of humpback 
whale and CA/OR/WA stock of sperm whale.
    NMFS will regularly evaluate other commercial fisheries for 
purposes of making a negligible impact determination (NID) and issuing 
section 101(a)(5)(E) authorizations with the annual LOF as new 
information becomes available. More information about the CA thresher 
shark/swordfish drift gillnet and Pacific highly migratory species 
drift gillnet 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 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 SARs for these species (available 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports), 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 document describing the preliminary determination supporting the 
permit (available at: https://www.regulations .gov/docket/NOAA-NMFS-
2021-0105).
    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 humpback whale 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

[[Page 71425]]

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-listed 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. Therefore, for the 
purpose of this MMPA 101(a)(5)(E) authorization, NMFS considered the 
CA/OR/WA stock of humpback whale to be ESA-listed as it overlaps with 
the two ESA-listed DPSs (Mexico, and Central America).

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. The 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

    NMFS evaluated the impact of the CA thresher shark/swordfish drift 
gillnet/Pacific highly migratory species drift gillnet fishery 
following the directive, and, based on the best available scientific 
information, made a draft NID.
    The CA/OR/WA stock of humpback whale is a transboundary stock. As 
noted above, because of the uncertainty regarding M/SI that occurs 
outside of U.S. waters for transboundary stocks, we assumed that total 
M/SI exceeds NITt and proceeded directly to the Tier 2 
NITs analysis. The CA/OR/WA stock of humpback whale has 
documented incidental M/SI with this fishery in the most recent (2021) 
draft CA/OR/WA humpback whale SAR (Carretta et al. 2021). The estimated 
annual M/SI of humpback whales (CA/OR/WA stock) in the CA drift gillnet 
fishery is 0.1, based on observer data. Since this M/SI (0.1) is less 
than NITs (2.48), NMFS determined that the CA drift gillnet 
fishery/Pacific highly migratory species drift gillnet fishery has a 
negligible impact on the CA/OR/WA stock of humpback whales (see 
accompanying MMPA 101(a)(5)(E) determination document linked above for 
NIT calculations).
    The draft 2021 SAR includes mean annual total commercial fishery-
related M/SI (>=25.2) for the CA/OR/WA stock of humpback whale. This 
comprises M/SI from all commercial fisheries, including the CA thresher 
shark/swordfish drift gillnet fishery, as well as fishery-related M/SI 
for the stock not assigned to a specific commercial fishery. The SAR 
also includes unattributed fishery-related M/SI (11.15) for the stock, 
which is not assigned to a specific commercial fishery. This 
unattributed fishery-related M/SI could be from any number of 
commercial, recreational or tribal fisheries, including the CA thresher 
shark/swordfish drift gillnet fishery. Because data are not currently 
available to assign the unattributed fishery-related M/SI to a specific 
commercial fishery, we did not include unattributed mortality in the 
calculations for the NID Tier 2 analysis. In addition, because the CA/
OR/WA humpback whale stock is considered to be a transboundary stock, 
NMFS assumed NITt is exceeded and conducted the more 
conservative Tier 2 analysis with the lower NITs criterion. 
NMFS is actively monitoring the CA thresher shark/swordfish drift 
gillnet fishery through a fishery observer program. Further, most of 
the information on large whale entanglements on the West Coast is 
reported to and documented by the West Coast Large Whale Entanglement

[[Page 71426]]

Response Program. If additional fishery-related M/SI of the CA/OR/WA 
stock of humpback whale is documented through the observer program or 
West Coast Large Whale Entanglement Response Program that indicates 
additional M/SI of the CA/OR/WA stock of humpback whale in the CA 
thresher shark/swordfish drift gillnet fishery, then NMFS will re-
evaluate the NID and the permit.
    The CA/OR/WA stock of sperm whale has documented incidental M/SI 
with this fishery in the most recent (2019) final CA/OR/WA sperm whale 
SAR (Carretta et al. 2020). The total annual average human-caused M/SI 
for the CA/OR/WA stock of sperm whales from 2013-2017 is 0.64, 
including 0.4 per year for the CA thresher shark/swordfish drift 
gillnet fishery and 0.24 per year for the sablefish hook and line 
fishery (Carretta et al. 2020). There was no other human-related M/SI 
of the CA/OR/WA stock of sperm whale reported during this time period. 
Since M/SI (0.64) is less than NITt (2.54), the CA drift 
gillnet fishery/Pacific highly migratory species drift gillnet fishery 
is considered to have a negligible impact on the CA/OR/WA stock of 
sperm whales.
    The NID analysis is presented in an 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 (available at: https://www.fisheries.noaa.gov/action/mmpa-list-fisheries-2021). The draft MMPA 
101(a)(5)(E) determination document is available at: https://www.regulations.gov/docket/NOAA-NMFS-2021-0105. 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 CA thresher shark/swordfish drift gillnet/Pacific 
highly migratory species drift gillnet fishery will have a negligible 
impact on the associated ESA-listed marine mammal stocks (CA/OR/WA 
stock of humpback whale and CA/OR WA stock of sperm whale). 
Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied for the 
commercial fishery (see draft MMPA 101(a)(5)(E) determination document 
is available at: https://www.regulations.gov/docket/NOAA-NMFS-2021-
0105).

Recovery Plan

    Recovery plans for humpback whales and sperm whales have been 
completed (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act). 
Accordingly, the requirement to have recovery plans 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 
stocks considered for this permit are designated as a strategic stock 
under the MMPA because the stocks, or a component of the stocks, are 
listed as threatened or endangered under the ESA (MMPA section 
3(19)(C)).
    The CA thresher shark/swordfish drift gillnet fishery, for the 
affected marine mammal species or stocks, has a TRP in place. 
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-2021-0105).

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 CA thresher shark/swordfish drift gillnet/Pacific 
highly migratory species drift gillnet fishery has been observed by 
NMFS since 1990. 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 CA thresher shark/swordfish 
drift gillnet/Pacific highly migratory species drift gillnet fishery as 
it relates to the three requirements of MMPA section 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 CA thresher shark/swordfish drift gillnet/Pacific highly 
migratory species drift gillnet 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 Plan is required 
for the permit. Issuing the proposed permit would have no additional 
impact on the human

[[Page 71427]]

environment or effects on threatened or endangered species beyond those 
analyzed in these documents.

References

Carretta, J.W., K.A. Forney, E.M. Olson, D.W. Weller, A.R. Lang, J. 
Baker, M.M. Muto, B. Hanson, A.J. Orr, H. Huber, M.S. Lowry, J. 
Barlow, J.E. Moore, D. Lynch, and R.L. Brownell. 2021. Draft U.S. 
Pacific Marine Mammal Stock Assessments: 2021. NOAA-TM-NMFS-SWFSC-
XXX.
Carretta, J.W., K.A. Forney, E.M. Olson, D.W. Weller, A.R. Lang, J. 
Baker, M.M. Muto, B. Hanson, A.J. Orr, H. Huber, M.S. Lowry, J. 
Barlow, J.E. Moore, D. Lynch, L. Carswell, and R.L. Brownell. 2020. 
U.S. Pacific Marine Mammal Stock Assessments: 2019. NOAA-TM-NMFS-
SWFSC-629.
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: December 13, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-27278 Filed 12-15-21; 8:45 am]
BILLING CODE 3510-22-P