Federal Register / Vol. 87, No. 91 / Wednesday, May 11, 2022 / Notices 28811 

remove the merchandise from the scope of 

the investigation if performed in the country 

of manufacture of the OCTG. 

Excluded from the scope of this 

investigation are: Casing, tubing, or coupling 

stock containing 10.5 percent or more by 

weight of chromium; drill pipe; unattached 

couplings; and unattached thread protectors. 

The merchandise subject to this 

investigation is currently classified in the 

Harmonized Tariff Schedule of the United 

States (HTSUS) under item numbers: 

7304.29.1010, 7304.29.1020, 7304.29.1030, 

7304.29.1040, 7304.29.1050, 7304.29.1060, 

7304.29.1080, 7304.29.2010, 7304.29.2020, 

7304.29.2030, 7304.29.2040, 7304.29.2050, 

7304.29.2060, 7304.29.2080, 7304.29.3110, 

7304.29.3120, 7304.29.3130, 7304.29.3140, 

7304.29.3150, 7304.29.3160, 7304.29.3180, 

7304.29.4110, 7304.29.4120, 7304.29.4130, 

7304.29.4140, 7304.29.4150, 7304.29.4160, 

7304.29.4180, 7304.29.5015, 7304.29.5030, 

7304.29.5045, 7304.29.5060, 7304.29.5075, 

7304.29.6115, 7304.29.6130, 7304.29.6145, 

7304.29.6160, 7304.29.6175, 7305.20.2000, 

7305.20.4000, 7305.20.6000, 7305.20.8000, 

7306.29.1030, 7306.29.1090, 7306.29.2000, 

7306.29.3100, 7306.29.4100, 7306.29.6010, 

7306.29.6050, 7306.29.8110, and 

7306.29.8150. 

The merchandise subject to this 

investigation may also enter under the 

following HTSUS item numbers: 

7304.39.0024, 7304.39.0028, 7304.39.0032, 

7304.39.0036, 7304.39.0040, 7304.39.0044, 

7304.39.0048, 7304.39.0052, 7304.39.0056, 

7304.39.0062, 7304.39.0068, 7304.39.0072, 

7304.39.0076, 7304.39.0080, 7304.59.6000, 

7304.59.8015, 7304.59.8020, 7304.59.8025, 

7304.59.8030, 7304.59.8035, 7304.59.8040, 

7304.59.8045, 7304.59.8050, 7304.59.8055, 

7304.59.8060, 7304.59.8065, 7304.59.8070, 

7304.59.8080, 7305.31.4000, 7305.31.6090, 

7306.30.5055, 7306.30.5090, 7306.50.5050, 

and 7306.50.5070. 

The HTSUS subheadings and 

specifications above are provided for 

convenience and customs purposes only. The 

written description of the scope of this 

investigation is dispositive. 

Appendix II—List of Sections in the 

Preliminary Decision Memorandum 

I. Summary 

II. Background 

III. Period of Investigation 

IV. Scope of the Investigation 

V. Discussion of the Methodology 

VI. Preliminary Affirmative Determination of 

Critical Circumstances 

VII. Currency Conversion 

VIII. Recommendation 

[FR Doc. 2022–10050 Filed 5–10–22; 8:45 am] 

BILLING CODE 3510–DS–P 

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. 

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-andmmpa-section-101a5e-authorization-cathresher-shark or https://

www.regulations.gov/docket/NOAANMFS-2021-0105. Other supporting 

information is available on the internet 

including: Recovery plans for the ESAlisted marine mammal species, https:// 

www.fisheries.noaa.gov/national/ 

endangered-species-conservation/ 

recovery-species-under-endangeredspecies-act; 2021 MMPA List of 

Fisheries (LOF), https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/listfisheries-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-assessmentreports-region, and stock, https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessment-reportsspecies-stock; and Take Reduction 

Teams and Plans, https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-take-reduction-plans-andteams. 

FOR FURTHER INFORMATION CONTACT: Tina 

Fahy, NMFS West Coast Region, (562) 

980–4023, Christina.Fahy@noaa.gov; or 

Jaclyn Taylor, NMFS Office of Protected 

Resources, (301) 427–8402, 

Jaclyn.Taylor@noaa.gov. 

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 


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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 NonSerious 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/marinemammal-stock-assessment-reports), 

recovery plans for these species 

(available at: https://

www.fisheries.noaa.gov/national/ 

endangered-species-conservation/ 

recovery-species-under-endangeredspecies-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/NOAANMFS-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 ESAlisted 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/protectedresources-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 humancaused 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 


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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 humancaused 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 

NITt and proceeded directly to the Tier 

2 NITs 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 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 the 

mean annual total commercial fisheryrelated 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 

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 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 (NITt) 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 humanrelated 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/mmpalist-fisheries-2021). The final MMPA 

101(a)(5)(E) determination document is 

available at: https://

www.fisheries.noaa.gov/action/ 

negligible-impact-determination-andmmpa-section-101a5e-authorization-cathresher-shark or https://

www.regulations.gov/docket/NOAANMFS-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/NOAANMFS-2021-0105). 

Recovery Plan 

Recovery plans for humpback whales 

and sperm whales have been completed 

(see https://www.fisheries.noaa.gov/ 

national/endangered-speciesconservation/recovery-species-underendangered-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. 


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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 nonsubstantive 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/criteriadetermining-negligible-impact-undermmpa-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 


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Federal Register / Vol. 87, No. 91 / Wednesday, May 11, 2022 / Notices 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/lawsand-policies/protected-resources-policydirectives. 

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/protectedresources-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/guidelinesassessing-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/marinemammal-protection-act-policiesguidance-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] 

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