[Federal Register Volume 87, Number 91 (Wednesday, May 11, 2022)]
[Notices]
[Pages 28811-28815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10066]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB850]


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

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

ACTION: Notice.

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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing 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: The permit is effective for a three-year period beginning May 
11, 2022.

ADDRESSES: Reference materials for the permit including the final 
negligible impact determination are available on the internet at: 
https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-ca-thresher-shark or 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, <a href="/cdn-cgi/l/email-protection#43002b312a30372a2d226d05222b3a032d2c22226d242c35"><span class="__cf_email__" data-cfemail="e2a18a908b91968b8c83cca4838a9ba28c8d8383cc858d94">[email protected]</span></a>; or Jaclyn Taylor, NMFS Office 
of Protected Resources, (301) 427-8402, <a href="/cdn-cgi/l/email-protection#703a11131c091e5e2411091c1f02301e1f11115e171f06"><span class="__cf_email__" data-cfemail="fcb69d9f908592d2a89d8590938ebc92939d9dd29b938a">[email protected]</span></a>.

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. NMFS has 
determined that the CA thresher shark/swordfish drift gillnet/Pacific 
highly migratory species drift gillnet fishery meets these three 
requirements and is issuing 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.

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

[[Page 28812]]

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 proposed 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 (86 FR 71423; December 
16, 2021).
    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 documents describing the preliminary and final determinations 
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), and based 
on the ``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 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, 
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 (NIT<INF>t</INF>), represents the total amount of human-
caused M/SI that NMFS considers negligible for a given stock. The 
second, lower threshold, Single NIT (NIT<INF>s</INF>) represents the 
level of M/SI from a single commercial fishery that NMFS considers 
negligible for a stock. NIT<INF>s</INF> 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 NIT<INF>t</INF>. If 
NIT<INF>t</INF> 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 NIT<INF>t</INF> is exceeded, then 
the Tier 2 analysis compares each individual fishery's M/SI for a 
particular stock to NIT<INF>s</INF>. If NIT<INF>s</INF> 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 
NIT<INF>t</INF> and proceed directly to the Tier 2 NIT<INF>s</INF> 
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

[[Page 28813]]

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 using 
the process outlined in the directive, and, based on the best available 
scientific information, made a 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 NIT<INF>t</INF> and proceeded directly to the Tier 2 
NIT<INF>s</INF> analysis. The most recent (draft 2021) CA/OR/WA 
humpback whale SAR has documented M/SI of the CA/OR/WA stock of 
humpback whale incidental to this fishery (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 NIT<INF>s</INF> (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 the 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. In accordance with 
NMFS Procedural Directive 02-204-02, 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 (NMFS 2020).
    In addition, because the CA/OR/WA humpback whale stock is 
considered a transboundary stock, NMFS assumed NIT<INF>t</INF> is 
exceeded and conducted the more conservative Tier 2 analysis with the 
lower NIT<INF>s</INF> 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 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 is not a transboundary stock. 
Therefore, we conducted the NID analysis starting with the Tier 1 
(NIT<INF>t</INF>) analysis. The most recent (final 2020) CA/OR/WA sperm 
whale SAR documented M/SI of the CA/OR/WA stock of sperm whale 
incidental to this fishery (Carretta et al. 2021). 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. 2021). 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 NIT<INF>t</INF> (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 final MMPA 
101(a)(5)(E) determination document is available at: https://www.fisheries.noaa.gov/action/negligible-impact-determination-and-mmpa-section-101a5e-authorization-ca-thresher-shark or 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 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 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.

[[Page 28814]]

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 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 
are issuing a MMPA 101(a)(5)(E) permit to the CA thresher shark/
swordfish drift gillnet/Pacific highly migratory species drift gillnet 
fishery to authorize the incidental take of ESA-listed species or 
stocks during commercial fishing operations. If, during the three-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.

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, 
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 analyze the effects 
of the proposed action on ESA-listed species and their critical habitat 
and, where appropriate, exempt 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 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, 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 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 permit would have no additional impact on the 
human environment or effects on threatened or endangered species beyond 
those analyzed in these documents.

Public Comments

    On December 16, 2021, NMFS published a notice and request for 
comments in the Federal Register for the proposed issuance of a permit 
under MMPA section 101(a)(5)(E) to vessels registered in the CA 
thresher shark/swordfish drift gillnet/Pacific highly migratory species 
drift gillnet fishery (86 FR 71423). The public comment period closed 
on January 18, 2022. NMFS received three comment letters on the 
proposed issuance of the permit and underlying preliminary 
determination. Oceana opposed issuing the permit. In addition, two non-
substantive comment letters from members of the public opposed issuing 
the permit. Only responses to substantive comments pertaining to the 
proposed permit and preliminary determination under MMPA section 
101(a)(5)(E) are addressed below.
    Comment 1: Oceana incorporates their previous comments submitted on 
the NMFS' draft ``Criteria for Determining Negligible Impact under MMPA 
Section 101(a)(5)(E).''
    Response: Oceana's comments on the draft ``Criteria for Determining 
Negligible Impact under MMPA Section 101(a)(5)(E)'' were previously 
addressed by NMFS and are available at: https://www.fisheries.noaa.gov/action/criteria-determining-negligible-impact-under-mmpa-section-101a5e.
    Comment 2: Oceana states that the existing monitoring program for 
the CA drift gillnet fishery does not meet the MMPA's requirement to 
provide statistically-reliable M/SI estimates. They note that observer 
coverage has averaged 20 percent annually, despite recommendations from 
the Pacific Fishery Management Council (Council) to achieve 100 percent 
observer coverage. Oceana asserts that 20 percent observer coverage is 
inadequate to accurately document marine mammal M/SI in the fishery. 
Oceana recommends NMFS not issue the MMPA 101(a)(5)(E) permit until the 
CA drift gillnet fishery is observed at 100 percent.
    Response: NMFS disagrees that the monitoring program for the CA 
thresher shark/swordfish drift gillnet is insufficient to fulfill the 
monitoring requirements of MMPA section 101(a)(5)(E). The CA thresher 
shark/swordfish drift gillnet fishery has been observed by NMFS since 
1990. The observer program in the CA drift gillnet fishery collects 
data on all target and non-target species, including the incidental M/
SI of marine mammals. NMFS scientists use data from the observer 
program to generate statistically-valid estimates of M/SI that are in 
the most recent SARs for the CA/OR/WA stocks of humpback whale and 
sperm whale. As such, it satisfies the requirement in MMPA section 
101(a)(5)(E)(i)(III).
    Comment 3: Oceana recommends NMFS implement the protected species 
hard caps for the CA drift gillnet fishery recommended by the Council 
before issuing the MMPA 101(a)(5)(E) permit to the fishery. They 
further state that NMFS should phase out and prohibit the use of large 
mesh drift gillnets and transition to a sustainable swordfish fishery. 
They note that in 2015 the Council recommended that NMFS increase 
observer coverage to 100 percent and set mortality and injury hard caps 
for nine sea turtle and marine mammal species in the CA drift gillnet 
fishery. Oceana states that NMFS has not implemented either of the 
Council's recommendations.
    Response: The Council's fishery management actions are taken to 
implement the Magnuson-Stevens Fishery Conservation and Management Act, 
and this permit is authorized under section 101(a)(5)(E) of the MMPA. 
In January 2020, the federal court in the Central District of 
California ordered NMFS to finalize its proposed ``hard caps'' rule, 
which would close the fishery upon reaching specified limits of

[[Page 28815]]

interactions with protected species. NMFS had sought to withdraw its 
proposed hard caps rule, after public comment had demonstrated closures 
would cause fishermen economic hardships NMFS had not anticipated. In 
February 2021, the federal court in the District of Columbia vacated 
the rule, agreeing that NMFS had found that the rule did not comply 
with National Standard 7's requirement to, where practicable, minimize 
costs and avoid unnecessary duplication.
    NMFS made a NID for the CA thresher shark/swordfish drift gillnet 
fishery's current bycatch using the process outlined in the directive, 
and, based on the best available scientific information (NMFS 2020). 
While implementation of future fishery management actions in the CA 
thresher shark/swordfish drift gillnet fishery could affect marine 
mammal bycatch rates, consideration of those actions are not relevant 
to or needed to support the determinations for this permit.
    Comment 4: Oceana comments NMFS's NID is biased towards inflating 
PBR and underestimating M/SI in the CA drift gillnet fishery. They 
state that, in 2016, NMFS established separate DPSs for humpback 
whales, including the Mexican and Central American DPSs. However, both 
the SAR and NID combine the Mexican and Central American DPSs into the 
CA/OR/WA stock of humpback whale and do not consider declines in the 
humpback population since 2018.
    Oceana also notes that the NID analysis does not include two 
observed entanglements in drift gillnet gear in 2021. They note that 
observer coverage for the 2021-22 fishing season is not yet available, 
as the fishing season has not concluded. However, using an estimate of 
20 percent observer coverage, the two observed entanglements would be 
approximately five total takes using a ratio estimator approach.
    Response: Humpback whales were listed globally as endangered under 
the ESA in 1970 (35 FR 18319). On September 8, 2016, NMFS published a 
final rule dividing the globally listed endangered humpback whale into 
14 DPSs and categorizing four DPSs as endangered and one as threatened 
(81 FR 62259). NMFS is in the process of revising humpback whale stock 
structure under the MMPA in light of the 2016 final rule on humpback 
whale DPSs as established under the ESA. In doing so, NMFS is following 
the process laid out in ``Procedural Directive 02-204-03: Reviewing and 
Designating Stocks and Issuing Stock Assessment Reports under the 
Marine Mammal Protection Act'' (NMFS 2019). As noted by the commenter, 
the CA/OR/WA stock of humpback whales does not align with the DPSs 
established under the ESA and comprises animals from the endangered 
Central American DPS, the threatened Mexico DPS, and the unlisted 
Hawaii DPS.
    Because we cannot manage one portion of an MMPA stock as ESA-listed 
and another portion of a stock as not ESA-listed, until humpback whale 
stock structure has been revised, NMFS continues to use the existing 
MMPA stock structure for MMPA management purposes, including NIDs and 
101(a)(5)(E) authorizations. Therefore, for purposes of evaluating the 
impact of the CA thresher shark/swordfish drift gillnet fishery under 
the MMPA, NMFS used the current MMPA designation of the CA/OR/WA stock 
of humpback whales. In the case of the CA/OR/WA stock of humpback 
whales, for the purposes of this NID analysis, NMFS considers the 
entire stock to be endangered under the ESA and depleted under the 
MMPA. In addition, because the CA/OR/WA humpback whale stock is 
considered to be transboundary, NMFS assumed NITt is exceeded and 
conducted the more conservative Tier 2 analysis with the lower NITs 
criterion.
    The most recent (draft 2021) CA/OR/WA humpback whale SAR has 
documented M/SI of the CA/OR/WA stock of humpback whale incidental to 
this fishery (Carretta et al. 2021). The draft 2021 SAR includes 
observer data through the 2019 fishing season. NMFS anticipates that 
future SARs will incorporate bycatch estimates for the CA thresher 
shark/swordfish drift gillnet fishery that include recent observed M/SI 
in 2021 after they have been completed.
    Given this approach and ongoing efforts to revise humpback whale 
stock structure in the Pacific, NMFS has proceeded with a final NID for 
the CA thresher shark/swordfish drift gillnet fishery with respect to 
the CA/OR/WA stock of humpback whales and is issuing a 101(a)(5)(E) 
permit for this fishery. Nevertheless, if, during the 3-year 
authorization, there is a significant change in the information or 
conditions used to support any of these determinations, including a 
change in MMPA stock structure and associated estimates of abundance 
and M/SI incidental to commercial fisheries, NMFS may re-evaluate the 
NID.

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, J. Barlow, J.E. Moore, 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, J. Barlow, J.E. Moore, and 
R.L. Brownell. 2021. U.S. Pacific Marine Mammal Stock Assessments: 
2020. NOAA-TM-NMFS-SWFSC-646.
National Marine Fisheries Service (NMFS). 2020. National Marine 
Fisheries Service Procedure 02-204-02: Criteria for Determining 
Negligible Impact under MMPA Section 101(a)(5)(E). 20 p. Available 
online: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.
National Marine Fisheries Service (NMFS). 2019. National Marine 
Fisheries Service Procedure 02-204-03: Reviewing and designating 
stocks and issuing Stock Assessment Reports under the Marine Mammal 
Protection Act. 9 p. Available online: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.
National Marine Fisheries Service (NMFS). 2016. National Marine 
Fisheries Service Procedure 02-204-01: Guidelines for preparing 
stock assessment reports pursuant to the 1994 amendments to the 
Marine Mammal Protection Act. 23 p. Available online: https://www.fisheries.noaa.gov/national/marine-mammal-protection/guidelines-assessing-marine-mammal-stocks.
National Marine Fisheries Service (NMFS). 2014. National Marine 
Fisheries Service Procedure 02-238-01: Process for Distinguishing 
Serious from Non-Serious Injury of Marine Mammals. 42 p. Available 
online: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-policies-guidance-and-regulations.

    Dated: May 5, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-10066 Filed 5-10-22; 8:45 am]
BILLING CODE 3510-22-P


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