[Federal Register Volume 89, Number 44 (Tuesday, March 5, 2024)]
[Notices]
[Pages 15843-15850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04599]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD602]
Taking of Threatened or Endangered Marine Mammals Incidental to
Commercial Fishing Operations; Proposed Issuance of Permits
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 permits 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: Comments on this action and supporting documents must be
received by April 4, 2024.
ADDRESSES: You may submit comments on the proposed permits and the
preliminary determinations supporting the permits, identified by NOAA-
NMFS-2024-0003, through the Federal e-Rulemaking Portal:
1. Go to https://www.regulations.gov and enter NOAA-NMFS-2024-0003
in the Search box.
[[Page 15844]]
2. Click the ``Comment'' icon, and complete the required fields.
3. Enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
https://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).
The preliminary determinations supporting the permits are available
on the internet at https://www.regulations.gov/docket/NOAA-NMFS-2024-0003. 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; 2024 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 (TRT)
and Plans, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.
FOR FURTHER INFORMATION CONTACT: Elena Duke, NMFS Pacific Islands
Region, 808-725-5085, [email protected]; Suzie Teerlink, NMFS Alaska
Region, (907) 586-7240, [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 pursuant to the
ESA; and (3) where required under MMPA section 118, a take reduction
plan (TRP) has been developed or is being developed, a monitoring
program is established, and vessels participating in the fishery are
registered. We have made a preliminary determination that certain
commercial fisheries meet these three requirements and propose to issue
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 solicit public comments on the proposed issuance of the
permits and the underlying preliminary determinations.
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. Section 118(c)(2) of the MMPA requires fishing vessels that
operate in Category I and II fisheries to 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 118(a)(2) of the MMPA, 16 U.S.C. 1387(a)(2),
also requires an additional authorization at section 101(a)(5) of the
MMPA, 16 U.S.C. 1371, for incidental taking of ESA-listed marine
mammals. 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 consecutive years shall allow the incidental, but not intentional,
taking of marine mammal species or 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, 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 pursuant to 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 TRP 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 2024 MMPA LOF (89 FR
12257, February 16, 2024) 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 permits under MMPA section 101(a)(5)(E) to vessels
registered in four Category I or Category II commercial fisheries, as
classified on the final 2024 MMPA LOF, to incidentally kill or
seriously injure individuals from specific ESA-listed marine mammal
stocks, as listed in table 1 below.
Table 1--Proposed 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
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HI deep-set longline/Western I.............. False killer whale,
Pacific pelagic longline (HI Main HI Islands
deep-set component) \1\. Insular.
AK Bering Sea, Aleutian Islands II............. Bearded seal,
flatfish trawl. Beringia; Humpback
whale, Western North
Pacific; Ringed seal,
Arctic; Steller sea
lion, Western U.S.
AK Bering Sea, Aleutian Islands II............. Bearded seal,
pollock trawl. Beringia; Humpback
whale, Mexico-North
Pacific; Humpback
whale, Western North
Pacific; Ringed seal,
Arctic; Steller sea
lion, Western U.S.
[[Page 15845]]
AK Gulf of Alaska sablefish II............. Sperm whale, North
longline. Pacific; Steller sea
lion, Western U.S.
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\1\ The Western Pacific pelagic longline (HI deep-set component) is the
corresponding high seas component of the HI deep-set longline fishery
as defined on the MMPA List of Fisheries.
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 most 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 2024 MMPA LOF (89 FR 12257, February 16, 2024) as not
subject to the ESA prohibition against incidentally taking marine
mammals from endangered or threatened species, and not subject to any
penalties, provided any mortalities or injures are reported as required
under MMPA section 118(e).
In addition, specifically 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 (NMFS 2020). In other words, if the commercial fishery is a
Category I or II fishery because of incidental take of non-ESA listed
marine mammals, we consider it a Category III fishery here. We have
determined that the following Category I and II commercial fisheries
meet this criteria:
Category I
Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics
longline; and
AK Southeast salmon drift gillnet;
Category II
AK Bristol Bay salmon drift gillnet;
AK Kodiak salmon set gillnet;
AK Peninsula/Aleutian Islands salmon set gillnet;
AK Yakutat salmon set gillnet; and
HI shallow-set longline/Western Pacific pelagic longline
(HI shallow-set component).
These fisheries do not require 101(a)(5)(E) authorization and are
not subject to the ESA prohibition against incidentally taking marine
mammals from endangered or threatened stocks and not subject to any
penalties, provided any marine mammal mortalities or injuries are
reported as required under MMPA section 118(e).
NMFS regularly evaluates 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 fisheries in table 1 is
available in the 2024 MMPA LOF (89 FR 12257, February 16, 2024) and on
the internet at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables.
For each commercial fishery listed in table 1, 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 2024 MMPA LOF (89 FR 12257,
February 16, 2024), the Stock Assessment Reports (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 documents describing the preliminary determinations
supporting the permits (available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0003).
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 uses 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.
[[Page 15846]]
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 NID). 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 Determinations
NMFS evaluated the impact of each commercial fishery (listed in
table 1 above) following the directive and based on the best available
scientific information, made preliminary NIDs. These NID analyses are
presented in accompanying MMPA 101(a)(5)(E) evaluation documents that
provide summaries of the information used to evaluate each ESA-listed
stock documented on the 2024 MMPA LOF as killed or injured incidental
to the fishery (available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables). The draft MMPA
101(a)(5)(E) evaluation documents are available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0003.
The following stocks listed in table 1 are transboundary stocks:
Western North Pacific stock of humpback whale, Mexico-North Pacific
stock of humpback whale, North Pacific stock of sperm whale, Western
U.S. stock of Steller sea lion, Beringia stock of bearded seal, and
Arctic stock of ringed seal. 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 for the
above transboundary stocks and proceeded directly to the Tier 2
NITs analysis.
The most recent SARs for several stocks listed in table 1 include
fishery-related M/SI not assigned to a specific commercial fishery
(information provided in NID analyses summaries where applicable
below). This unattributed fishery-related M/SI could be from any number
of commercial, recreational, or subsistence fisheries, including
fisheries listed in table 1. 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 NID Tier 2 analyses (described below). NMFS is
actively monitoring the fisheries in table 1 through fishery observer
programs. If additional fishery-related M/SI is documented through the
observer programs that indicate additional M/SI of the stocks listed in
Table 1, then NMFS will re-evaluate the appropriate NID and the permit.
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 four Category I and II 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 (see draft MMPA
101(a)(5)(E) determination document is available at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0003). Summaries of the NID
analyses are provided below.
HI Deep-Set Longline/Western Pacific Pelagic Longline (HI Deep-Set
Component) Fishery
The Category I HI deep-set longline/Western Pacific pelagic
longline (HI deep-set component) fishery has documented incidental M/SI
of the main HI Islands (MHI) insular stock of false killer whale in the
2023 draft SAR (Carretta et al. In press). The total annual average
human caused M/SI for this stock (0.03) does not exceed NITt
(0.258); thus, the Tier 1 analysis is satisfied and all commercial
fisheries are considered to have a negligible impact on this stock (see
accompanying MMPA 101(a)(5)(E) evaluation document linked above for NIT
calculation).
AK Bering Sea, Aleutian Islands Flatfish Trawl Fishery
The Category II AK Bering Sea, Aleutian Islands flatfish trawl
fishery has documented incidental M/SI of the Western U.S. stock of
Steller sea lion in the 2023 draft SAR (Young et al. In press). The
2023 SAR includes mean annual total commercial fishery-related M/SI
(39) for the Western U.S. stock of Steller sea lion. This comprises M/
SI from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands flatfish trawl 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 (1.9) for the stock, which
is not assigned to a specific commercial fishery.
The estimated M/SI of Steller sea lions (Western U.S. stock) in the
AK Bering Sea, Aleutian Islands flatfish trawl fishery is 13, based on
observer data. Since this M/SI (13) is less than NITs
(38.87), NMFS determined that the AK Bering Sea, Aleutian Islands
flatfish trawl fishery has a negligible impact on the Western U.S.
stock of Steller sea lion (see accompanying MMPA 101(a)(5)(E)
evaluation document).
The Category II AK Bering Sea, Aleutian Islands flatfish trawl
fishery has documented M/SI of the Western North Pacific stock of
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR
includes mean annual total commercial fishery-related M/SI (0.012) for
the Western North Pacific stock of humpback whale. This comprises M/SI
from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands flatfish trawl 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 (0.001) 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 subsistence fisheries, including the AK Bering Sea,
Aleutian Islands flatfish trawl fishery.
[[Page 15847]]
The estimated M/SI of humpback whales (Western North Pacific stock)
in the AK Bering Sea, Aleutian Islands flatfish trawl fishery is 0,
based on observer data. Since this M/SI (0) is less than
NITs (0.439), NMFS determined that the AK Bering Sea,
Aleutian Islands flatfish trawl fishery has a negligible impact on the
Western North Pacific stock of humpback whale (see accompanying MMPA
101(a)(5)(E) evaluation document).
The Category II AK Bering Sea, Aleutian Islands flatfish trawl
fishery has documented incidental M/SI of the Beringia stock of bearded
seal in the 2020 final SAR (Muto et al. 2021). The mean annual total
commercial fishery-related M/SI of the Beringia stock of bearded seal
is 1.8, and all attributed to trawl fisheries. The estimated M/SI of
bearded seals (Beringia stock) in the AK Bering Sea, Aleutian Islands
flatfish trawl fishery is 1.2, based on observer data. Since this M/SI
(1.2) is less than NITs (213.5), NMFS determined that the AK
Bering Sea, Aleutian Islands flatfish trawl fishery has a negligible
impact on the Beringia stock of bearded seal (see accompanying MMPA
101(a)(5)(E) evaluation document).
The Category II AK Bering Sea, Aleutian Islands flatfish trawl
fishery has documented incidental M/SI of the Arctic stock of ringed
seal in the 2020 final SAR (Muto et al. 2021). The mean annual total
commercial fishery-related M/SI of the Arctic stock of ringed seal is
4.8, and all attributed to trawl fisheries. The estimated M/SI of
ringed seals (Arctic stock) in the AK Bering Sea, Aleutian Islands
flatfish trawl fishery is 4.6, based on observer data. Since this M/SI
(4.6) is less than NITs (123.6), NMFS determined that the AK
Bering Sea, Aleutian Islands flatfish trawl fishery has a negligible
impact on the Arctic stock of ringed seal (see accompanying MMPA
101(a)(5)(E) evaluation document).
AK Bering Sea, Aleutian Islands Pollock Trawl Fishery
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented incidental M/SI of the Western U.S. stock of
Steller sea lion in the 2023 draft SAR (Young et al. In press). The
2023 SAR includes mean annual total commercial fishery-related M/SI
(39) for the Western U.S. stock of Steller sea lion. This comprises M/
SI from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands flatfish trawl 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 (1.9) for the stock, which
is not assigned to a specific commercial fishery.
The estimated M/SI of Steller sea lions (Western U.S. stock) in the
AK Bering Sea, Aleutian Islands pollock trawl fishery is 6.8, based on
observer data. Since this M/SI (6.8) is less than NITs
(38.87), NMFS determined that the AK Bering Sea, Aleutian Islands
pollock trawl fishery has a negligible impact on the Western U.S. stock
of Steller sea lion (see accompanying MMPA 101(a)(5)(E) evaluation
document).
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented incidental M/SI of the Arctic stock of ringed
seal in the 2020 final SAR (Muto et al. 2021). The estimated M/SI of
ringed seals (Arctic stock) in the AK Bering Sea, Aleutian Islands
pollock trawl fishery is 0.2, based on observer data. Since this M/SI
(0.2) is less than NITs (123.6), NMFS determined that the AK
Bering Sea, Aleutian Islands pollock trawl fishery has a negligible
impact on the Arctic stock of ringed seal (see accompanying MMPA
101(a)(5)(E) evaluation document).
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented M/SI of the Western North Pacific stock of
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR
includes mean annual total commercial fishery-related M/SI (0.012) for
the Western North Pacific stock of humpback whale. This comprises M/SI
from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands pollock trawl 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 (0.001) for the stock, which
is not assigned to a specific commercial fishery.
The estimated M/SI of humpback whales (Western North Pacific stock)
in the AK Bering Sea, Aleutian Islands pollock trawl fishery is 0.008,
based on observer data. Since this M/SI (0.008) is less than
NITs (0.439), NMFS determined that the AK Bering Sea,
Aleutian Islands pollock trawl fishery has a negligible impact on the
Western North Pacific stock of humpback whale (see accompanying MMPA
101(a)(5)(E) evaluation document).
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented M/SI of the Mexico-North Pacific stock of
humpback whale in the 2022 final SAR (Young et al. 2023). The 2022 SAR
includes mean annual total commercial fishery-related M/SI (0.36) for
the Mexico-North Pacific stock of humpback whale. This comprises M/SI
from all commercial fisheries, including the AK Bering Sea, Aleutian
Islands pollock trawl 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 (0.05) for the stock, which
is not assigned to a specific commercial fishery.
The estimated M/SI of humpback whales (Mexico-North Pacific stock)
in the AK Bering Sea, Aleutian Islands pollock trawl fishery is 0.03,
based on observer data. As described in the 2022 final SAR, the minimum
population estimate (Nmin) for this stock is considered
unknown (Young et al. 2023), and therefore NITs cannot be
calculated directly. Using the process outlined in the directive (NMFS
2020), a threshold Nmin for NITs was calculated.
The threshold Nmin for NITs is 69.93. Since it is
likely that the minimum population for the Mexico-North Pacific stock
of humpback whale exceeds the threshold Nmin, NMFS has
determined that the AK Bering Sea, Aleutian Islands pollock trawl
fishery has a negligible impact on the Mexico-North Pacific stock of
humpback whale (see accompanying MMPA 101(a)(5)(E) evaluation
document).
The Category II AK Bering Sea, Aleutian Islands pollock trawl
fishery has documented incidental M/SI of the Beringia stock of bearded
seal in the 2020 final SAR (Muto et al. 2021). The estimated M/SI of
bearded seal (Beringia stock) in the AK Bering Sea, Aleutian Islands
pollock trawl fishery is 0.6, based on observer data. Since this M/SI
(0.6) is less than NITs (213.5), NMFS determined that the AK
Bering Sea, Aleutian Islands pollock trawl fishery has a negligible
impact on the Beringia stock of bearded seal (see accompanying MMPA
101(a)(5)(E) evaluation document).
AK Gulf of Alaska Sablefish Longline Fishery
The Category II AK Gulf of Alaska sablefish longline fishery has
documented M/SI of North Pacific stock of sperm whale in the 2020 final
SAR (Muto et al. 2021). The estimated M/SI of sperm whales (North
Pacific stock) in the AK Gulf of Alaska sablefish longline fishery is
1.1, based on observer data.
As noted in the SAR, current and historical abundance estimates of
sperm whales in the North Pacific are based on limited data and are
considered unreliable; caution should be exercised in interpreting
published estimates. Further, sperm whales are far-ranging and exhibit
sex segregation and stock overlap that together make population
[[Page 15848]]
size estimation difficult (Muto et al. 2021). More specifically,
females and juveniles are unlikely to occur in this area, so the
abundance estimate includes only males. As described in the 2020 final
SAR, a Nmin can be calculated for this stock using the
population estimate of 345 (coefficient of variation (CV) = 0.43) from
surveys in the Gulf of Alaska in 2015, the Nmin is then
derived from the estimate and CV and results in a Nmin of
244 sperm whales. However, this Nmin (244) is an
underestimate for the entire stock because it is based on surveys of a
small portion of the stock's extensive range and it does not account
for animals missed on the trackline or for females and juveniles in
tropical and subtropical waters (Muto et al. 2021). Therefore, using
the process outlined in the directive (NMFS 2020), we calculated a
threshold Nmin for NITs which is 4,230.8. Genetic
evidence suggests that the males sampled in the sub-Artic come from
multiple populations at lower latitudes including the West Coast
(Nmin = 1,270) and Hawai[revaps]i (Nmin = 4,486)
stocks as well as the Eastern Tropical Pacific sperm and thus do not
represent the males from a single population (Mesnick et al. 2011).
Given the uncertainty of the stock assessment and the underestimated
abundance, NMFS has determined that it is likely that the abundance is
greater than the threshold Nmin and that the AK Gulf of
Alaska sablefish longline fishery has a negligible impact on the North
Pacific stock of sperm whale (see accompanying MMPA 101(a)(5)(E)
evaluation document).
The Category II AK Gulf of Alaska sablefish longline fishery has
documented incidental M/SI of the Western U.S. stock of Steller sea
lion in the 2023 draft SAR (Young et al. In press). The 2023 SAR
includes mean annual total commercial fishery-related M/SI (39) for the
Western U.S. stock of Steller sea lion. This comprises M/SI from all
commercial fisheries, including the AK Gulf of Alaska sablefish
longline 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 (1.9) for the stock, which is not
assigned to a specific commercial fishery.
The estimated M/SI of Steller sea lions (Western U.S. stock) in the
AK Gulf of Alaska sablefish longline fishery is 1.9, based on observer
data. Since this M/SI (1.9) is less than NITs (38.87), NMFS
determined that the AK Gulf of Alaska sablefish longline fishery has a
negligible impact on the Western U.S. stock of Steller sea lion (see
accompanying MMPA 101(a)(5)(E) evaluation document).
Recovery Plans
Recovery plans for Steller sea lions, sperm whales, and false
killer whales (MHI insular) have been completed (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act).
A new recovery plan for humpback whales is being developed. In
2016, NMFS revised the listing status of the humpback whale under the
ESA. The globally listed endangered species was divided into 14
distinct population segments (DPSs), the species-level listing was
removed, and NMFS listed four DPSs as endangered and one DPS as
threatened (81 FR 62260, September 8, 2016). In June 2022, NMFS
published a recovery outline for the Central America, Mexico, and
Western North Pacific DPSs of humpback whales (https://www.fisheries.noaa.gov/resource/document/recovery-outline-central-america-mexico-and-western-north-pacific-distinct). The recovery
outline serves as an interim guidance document and, with the existing
species-wide recovery plan, directs recovery efforts, including
recovery planning, for the Central America, Mexico, and Western North
Pacific DPSs of humpback whales. Once finalized, the new recovery plan
will replace the species-wide recovery plan that was published in 1991.
Recovery plans for bearded and ringed seals are also being
developed.
Accordingly, the requirement that a recovery plan has been
developed or is being developed pursuant to the ESA is satisfied.
Take Reduction Plans
The MMPA section 118 requires the development and implementation of
a TRP for each strategic stock that interacts with a Category I or II
fishery. Subject to available funding, the Secretary shall give highest
priority to the development of TRPs for species or stocks whose M/SI
exceeds potential biological removal (PBR) level, have a small
population size, and which are declining most rapidly. The stocks
considered for these permits are designated as strategic stocks under
the MMPA because the stocks or a component of the stocks are listed as
threatened species or endangered species under the ESA (MMPA section
3(19)(C)).
The MMPA establishes short- and long-term goals of a TRP. The
short-term goal of a TRP is to reduce M/SI of marine mammals
incidentally taken in commercial fisheries to levels below the PBR for
stocks. The long-term goal is to reduce M/SI of marine mammals
incidentally taken in commercial fisheries to levels below the
insignificant threshold, defined by NMFS as 10 percent of a stock's PBR
level (50 CFR 229.2). 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 SAR and LOF as the
basis to determine its priorities for establishing 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.
The HI deep-set longline fishery, for the affected marine mammal
species or stocks (table 1), has a TRP in place.
Both the AK Bering Sea, Aleutian Islands flatfish trawl and AK
Bering Sea, Aleutian Islands pollock trawl fisheries, for the affected
marine mammals species or stocks (table 1) have met the long-term goals
of a TRP (i.e., M/SI of marine mammals incidentally taken in to these
fisheries is below the insignificant threshold, which is 10 percent of
a stock's PBR level).
PBR and incidental M/SI for each stock listed in table 1 in the AK
Bering Sea, Aleutian Islands flatfish trawl fishery are as follows:
Bearded seal, Beringia--PBR = 8,210, M/SI = 1.2, M/SI as
percent of the stock's PBR = 0.01 percent;
Humpback whale, Western North Pacific--PBR = 0.2, M/SI =
0, M/SI as percent of stock's PBR = 0 percent;
Ringed seal, Arctic--PBR = 4,755, M/SI = 4.6, M/SI as
percent of the stock's PBR = 0.097 percent; and
Steller sea lion, Western U.S--PBR = 299, M/SI = 13, M/S
as percent of the stock's PBR = 4.3 percent.
PBR and incidental M/SI for each stock listed in table 1 in the AK
Bering Sea, Aleutian Islands pollock trawl fishery are as follows:
Bearded seal, Beringia--PBR = 8,210, M/SI = 0.6, M/SI as
percent of the stock's PBR = 0.007 percent;
[[Page 15849]]
Humpback whale, Mexico-North Pacific--PBR is undetermined,
M/SI = 0.03; \1\
---------------------------------------------------------------------------
\1\ Nmin for the Mexico-North Pacific stock of
humpback whale in the winter and summer areas is 2,241 and 766,
respectively. Both of these estimates of abundance are based on data
collected more than 15 years ago. As stated in the 2022 SAR, because
Nmin is considered unknown, PBR is undetermined. Based on
the dated Nmin for this population, that NMFS believes
the population to be either stable or increasing, and the incidental
M/SI of 0.03 in the AK Bering Sea, Aleutian Islands pollock trawl
fishery, NMFS estimates the M/SI is below 10 percent of the stock's
PBR.
---------------------------------------------------------------------------
Humpback whale, Western North Pacific--PBR = 0.2, M/SI =
0.008, M/SI as percent of stock's PBR = 4 percent;
Ringed seal, Arctic--PBR = 4,755, M/SI = 0.2, M/SI as
percent of the stock's PBR = 0.004 percent; and
Steller sea lion, Western U.S--PBR = 299, M/SI = 6.8, M/SI
as percent of the stock's PBR = 2.2 percent.
Marine mammal M/SI incidental to each commercial fishery (AK Bering
Sea, Aleutian Islands flatfish trawl, and AK Bering Sea, Aleutian
Islands pollock trawl) is below 10 percent of each stock's PBR; thus it
is already below the insignificance threshold and approaching a zero M/
SI rate. MMPA Section 118(b) requires fisheries to reduce incidental M/
SI to insignificant levels and states that fisheries that maintain
insignificant M/SI levels shall not be required to further reduce those
rates. Therefore, the AK Bering Sea, Aleutian Islands flatfish trawl
and AK Bering Sea, Aleutian Islands pollock trawl fisheries cannot be
required to further reduce M/SI rates associated with marine mammal
species or stocks. As a result, further take reduction planning is not
appropriate at this time.
As noted above and in the SAR, the Nmin (244) for the
North Pacific stock of sperm whales ``is an underestimate for the
entire stock because it is based on surveys of a small portion of the
stock's extensive range and it does not account for animals missed on
the trackline or for females and juveniles in tropical and subtropical
waters'' (Muto et al. 2021). Based on NMFS' priorities, implementation
of a TRP for the AK Gulf of Alaska sablefish longline fishery is under
development but currently deferred under MMPA section 118(f)(3) as
other stocks/fisheries are a higher priority for any available funding.
Likewise, even if NMFS was required to engage in further take reduction
planning for the AK Bering Sea, Aleutian Islands flatfish trawl and AK
Bering Sea, Aleutian Islands pollock trawl fisheries, further
development of a TRP for those fisheries would also deferred under MMPA
section 118(f)(3) as other stocks/fisheries are a higher priority for
any available funding.
All of the evaluated fisheries listed in table 1, for the affected
marine mammal species or stocks, have a TRP in place, achieved the
long-term goal of MMPA section 118(f), 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
preliminary determinations supporting the permits available on the
internet at https://www.regulations.gov/docket/NOAA-NMFS-2024-0003).
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 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 Proposed Permits
Based on the above evaluation for each commercial fishery listed in
table 1 as it relates to the three requirements of MMPA section
101(a)(5)(E), we propose to 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 the authorization,
after notice and opportunity for public comment. If the authorization
for an individual fishery in table 1 becomes amended, modified, or
invalidated 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. NMFS solicits public
comments on the proposed permits and the preliminary determinations
supporting the permits.
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
continued 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
ESA section 7 Biological Opinions on the commercial fishery, and
incidental take was exempted for those ESA-listed marine mammals for
each of these fisheries in accordance with the Biological Opinions'
incidental take statement. 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, exempt take
of ESA-listed species that is reasonably certain to occur, 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 NID
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, do 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 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.
References
Carretta, J.W., E.M. Oleson, K.A. Forney, M.M. Muto, D.W. Weller,
A.R. Lang, J. Baker, B. Hanson, A.J. Orr, J. Barlow, J.E.
[[Page 15850]]
Moore, and R.L. Brownell. In Press. Draft U.S. Pacific Marine Mammal
Stock Assessments: 2023. U.S. Department of Commerce.
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B.L. Hancock-Hanser, S.C. Moreno Medina, V.L. Pease, K.M. Robertson,
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Burkanov, C.R. Lunsford, L. Rendell, and P.A. Morin. 2011. Sperm
whale population structure in the eastern and central North Pacific
inferred by the use of single-nucleotide polymorphisms,
microsatellites and mitochondrial DNA. Molecular Ecology Resources,
11(S1), 278-298.
Muto, M.M., V.T. Helker, B.J. Delean, N.C. Young, J.C. Freed, R.P.
Angliss, N.A. Friday, P.L. Boveng, J.M. Breiwick, B.M. Brost, M.F.
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assessments, 2020. U.S. Department of Commerce, NOAA Tech. Memo.
NMFS-AFSC-421. 398 p.
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.
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Brost, M.F. Cameron, P.J. Clapham, J.L. Crance, S.P. Dahle, M.E.
Dahlheim, B.S. Fadely, M.C. Ferguson, L.W. Fritz, K.T. Goetz, R.C.
Hobbs, Y.V. Ivashchenko, A.S. Kennedy, J.M. London, S.A. Mizroch,
R.R. Ream, E.L. Richmond, K.E.W. Shelden, K.L. Sweeney, R.G. Towell,
P.R. Wade, J.M. Waite, and Alexandre N. Zerbini. 2023. Alaska Marine
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Technical Memorandum NMFS-AFSC-474, 316 p.
Young, N.C., Brower, A.A., Muto, M.M., Freed, J.C., Angliss, R.P.,
Friday, B.D Birkemeier, N.A., Boveng, P.L., Brost, B.M., Cameron,
M.F., Crance, J.L., Dahle, S.P., Fadely, B.S., Ferguson, M.C.,
Goetz, K.T., London, Oleson, E.M., J.M., Ream, R.R., Richmond, E.L.,
Shelden, K.E.W., Sweeney, K.L., Towell, R.G., Wade, P.R., Waite,
J.M., and Zerbini, A.N. In Press. Draft Alaska marine mammal stock
assessments, 2023. U.S. Department of Commerce.
Dated: February 29, 2024.
Angela Somma,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2024-04599 Filed 3-4-24; 8:45 am]
BILLING CODE 3510-22-P