[Federal Register Volume 71, Number 145 (Friday, July 28, 2006)]
[Notices]
[Pages 42809-42812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12127]
[[Page 42809]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 062006A]
Taking of Threatened or Endangered Marine Mammals Incidental to
Commercial Fishing Operations; Proposed Permit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of proposal for issuance of permit; request for
comments.
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SUMMARY: NMFS proposes to issue a permit for a period of three years,
to authorize the incidental, but not intentional, taking of three
stocks of threatened or endangered marine mammals by the California/
Oregon (CA/OR) drift gillnet large mesh ([gteqt] 14 inch mesh) ( DGN)
fishery. NMFS must issue this permit provided that we can make the
determinations that: the incidental take will have a negligible impact
on the affected marine mammal stocks; a recovery plan for all affected
stocks of threatened or endangered marine mammals has been developed or
is being developed; and as required by the MMPA, a take reduction plan
and monitoring program have been implemented and vessels in the CA/OR
DGN fishery are registered. NMFS solicits public comments on the
negligible impact determination and on the proposal to issue a permit
to this fishery for the taking of affected threatened or endangered
stocks of marine mammals.
DATES: Comments must be received by August 28, 2006.
ADDRESSES: A draft of the negligible impact determination is available
on the Internet at the following addresses: http://swr.nmfs.noaa.gov/.
Written copies of the determination may be requested from, and comments
on the determination and proposed permit should be sent to: Monica
DeAngelis, Protected Resources Division, NMFS, Southwest Region, 501
West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. Comments may
also be sent by e-mail to: [email protected] or by fax to (301)
427-2582.
The recovery plan for humpback whales is available on the Internet
at the following address: http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals.
The draft recovery plans for fin and sperm whales are available on
the Internet at the following address: http://www.nmfs.noaa.gov/pr/.
(See ``Recent News and Hot Topics''.)
Regulations implementing the Pacific Offshore Cetacean Take
Reduction Plan (POCTRP) are available on the Internet at the following
address: http://www.nmfs.noaa.gov/pr/interactions/trt/teams.htm.
FOR FURTHER INFORMATION CONTACT: Monica DeAngelis, NMFS, Southwest
Region Protected Resources Division (SWR PRD), (562) 980-3232 or
Christina Fahy, NMFS, SWR PRD, (562) 980-4023.
SUPPLEMENTARY INFORMATION: Background
Section 101(a)(5)(E) of the Marine Mammal Protection Act (MMPA) (16
U.S.C. 1371(a)(5)(E)) requires NMFS to authorize the incidental taking
of individuals from marine mammal stocks listed as threatened or
endangered under the Endangered Species Act (ESA), as amended (16
U.S.C. 1531 et seq.) in the course of commercial fishing operations if
NMFS determines that: (1) Incidental mortality and serious injury 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.
On August 31, 1995 (60 FR 45399), NMFS issued permits for fisheries
meeting the conditions under section 101(a)(5)(E) of the MMPA. At that
time, NMFS did not issue a permit to the CA/OR DGN fishery for the CA/
OR/WA-Mexico humpback whale stock or the CA/OR/WA sperm whale stock
because NMFS was unable to determine that the estimated mortality and
serious injury incidental to commercial fishing operations was
negligible. In addition, in 1995, NMFS did not consider issuing a
permit for the incidental mortality and serious injury of the CA/OR/WA
fin whale stock because there had been no reported incidental takes at
that time, and NMFS had no reason to anticipate any such takes.
However, NMFS did determine that the mortality and serious injury
incidental to commercial fishing operations was negligible for the
eastern Steller sea lion stock and issued a permit for that stock. On
December 30, 1998 (63 FR 71894), NMFS extended the permit until June
30, 1999. At that time, NMFS announced that it was reviewing the
criteria for issuance of permits and evaluating whether the criteria
were adequate or if changes should be made. No comments were received.
On May 27, 1999 (64 FR 28800), NMFS proposed the issuance of permits
for those fisheries that have negligible impacts on marine mammal
stocks listed as threatened or endangered under the ESA for a period of
3 years. In addition, that document provided further guidance about the
process for determining negligible impact. A permit for the mortality
and serious injury of the Steller sea lion incidental to the CA/OR DGN
fishery was also proposed. NMFS did not finalize the proposed permits.
Since 1995, NMFS has gathered additional data on the status of
listed marine mammals. Based on the more recent survey data and
analyses, the Stock Assessment Reports (SARs) contain revised estimates
of Potential Biological Removal (PBR) levels. PBR is defined in the
MMPA as ``the maximum number of animals, not including natural
mortalities, that may be removed from a stock while allowing that stock
to reach or maintain its optimum sustainable population'' (16 U.S.C.
1362 (20)). Also, since 1995, NMFS has developed and implemented the
POCTRP (62 FR 51805, October 30, 1997) for the CA/OR DGN fishery. The
initial goal of a take reduction plan is to reduce marine mammal
bycatch in the fishery to levels below PBR for all stocks. Since the
implementation of the POCTRP, overall cetacean mortality in this
fishery has been reduced considerably.
In 2000, NMFS conducted a negligible impact determination and
issued an authorization under MMPA section 101(a)(5)(E) for the CA/OR
DGN fishery to incidentally take from four stocks of threatened or
endangered marine mammals; the humpback whale, sperm whale, fin whale,
and Steller sea lion. This authorization was finalized on October 30,
2000 (65 FR 64670) and was effective for three years, expiring in
October 2003.
NMFS is now considering the issuance of a permit under MMPA section
101(a)(5)(E) to vessels registered in the CA/OR DGN fishery to
incidentally take from three stocks of threatened or endangered marine
mammals: the CA/OR/WA stock of fin whales (Balaenoptera physalus), the
Eastern North Pacific stock of humpback whales (Megaptera
novaeangliae), and the CA/OR/WA stock of sperm whales (Physeter
macrocephalus). The data for considering an authorization were reviewed
coincident with and following implementation of a Fishery
[[Page 42810]]
Management Plan (FMP) for U.S. West Coast Fisheries for Highly
Migratory Species (HMS), publication of the 2005 List of Fisheries
(LOF) (71 FR 247, January 4, 2006), and the 2005 SAR (Carretta et al.
2006). The CA/OR DGN fishery is the only fishery on the 2005 list of
Category I and II fisheries that operates in the ranges of the affected
stocks and has been observed to interact with endangered or threatened
marine mammals other than Steller sea lions. The basis for authorizing
the take of Steller sea lions incidental to commercial fishing will be
considered in a future document.
Under Federal regulations, the CA/OR DGN fishery is restricted to
waters outside 200 nautical miles (nm) from February 1 through April
30, outside 75 nm from May 1 through August 14, and is allowed to fish
inside 75 nm from August 15 though January 31. Other closures can be
found at 50 CFR 660.713. In 2001, a seasonal (15 August to 15 November)
area closure was implemented in the DGN fishery north of Point
Conception to protect leatherback turtles that feed in the area and
have been observed entangled in previous fishing seasons. In addition,
fishing effort east of the 120[deg] W. longitude off the coast of
southern CA would be prohibited during a forecasted, or occurring, El
Nino event from June 1 through August 31, in order to reduce the
likelihood of an interaction with loggerhead turtles (68 FR 69962,
December 16, 2003).
Basis for Determining Negligible Impact
Section 101(a)(5)(E) of the MMPA requires the authorization of the
incidental taking of individuals from marine mammal stocks listed as
threatened or endangered under the ESA in the course of commercial
fishing operations if NMFS determines, among other things, that
incidental mortality and serious injury will have a negligible impact
on the affected species or stock. ``Negligible impact,'' as defined in
50 CFR 216.103 and as it applies here is, ``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.''
In 1990 as required by the MMPA, the Marine Mammal Commission (MMC)
submitted guidelines to NMFS to govern the incidental taking of marine
mammals during the course of commercial fishing operations. In those
guidelines, the MMC recommended NMFS determine negligible impact if the
mortality and serious injury incidental to commercial fishing
operations would cause no more than a 10 percent increase in the time
to recovery. The MMC's recommendation was a quantified approach to
assessing negligible impact; however, it did not identify what limit on
mortality and serious injury would delay a stock's recovery by not more
than 10 percent.
NMFS investigated such a limit of annual mortality and serious
injury while implementing the MMPA Amendments of 1994. NMFS included
the MMC's recommendation when preparing guidelines for the initial
marine mammals stock assessment reports and determined that 90 percent
of net annual production of endangered stocks of marine mammals should
be reserved for recovery, which would increase recovery time of
endangered stocks by no more than 10 percent. Accordingly, a default
recovery factor of 0.1 was used in the PBR equation for endangered
stocks of marine mammals (Barlow et al., 1995). Thus, when human-caused
mortality and serious injury of these stocks was limited to no more
than the stock's PBR, such mortality and serious injury would cause no
more than a 10-percent delay in the recovery of the stock.
On August 31, 1995 (60 FR 45399), NMFS issued permits for fisheries
meeting the conditions under section 101(a)(5)(E) of the MMPA. As a
starting point for making determinations, NMFS announced it would
consider a total annual serious injury and mortality of not more than
10 percent of a threatened or endangered marine mammal's PBR level to
be negligible. NMFS also announced that such a criterion would not be
the only factor in evaluating whether a particular level of take would
be considered negligible and that such factors as population trend and
reliability of abundance and mortality estimates should also be
considered. Consistent with the provisions of section 101(a)(5)(E)(ii)
of the MMPA, NMFS determined that permits were not required for
Category III fisheries, which are not required to register under
section 118 of the MMPA. The only requirement for Category III
fisheries is that any serious injury or mortality be reported, provided
that mortality and serious injury incidental to commercial fisheries
would have a negligible impact on the affected threatened or endangered
stocks of marine mammals.
On December 30, 1998 (63 FR 71894), NMFS extended the permits until
June 30, 1999. At that time, NMFS announced that it was reviewing the
criteria for issuance of permits and requested public comments on
whether the criteria were adequate or whether changes should be made.
No comments were received.
On May 27, 1999 (64 FR 28800), NMFS proposed issuing authorization
for those fisheries that had negligible impacts on marine mammal stocks
listed as threatened and endangered under the ESA, for a period of 3
years. Based on new information, NMFS did not finalize the proposed
permits. However, the notice included the adoption by NMFS of new
criteria for making a negligible impact determination under section
101(a)(5)(E), based on internal review:
1. The threshold for initial determination will remain at 0.1 PBR.
If total human-related serious injuries and mortalities are less than
0.1 PBR, all fisheries may be permitted;
2. If total human-related serious injuries and mortalities are
greater than PBR, and fisheries-related mortality is less than 0.1 PBR,
individual fisheries may be permitted if management measures are being
taken to address non-fisheries-related serious injuries and
mortalities. When fisheries-related serious injury and mortality is
less than 10 percent of the total, the appropriate management action is
to address components that account for the major portion of the total;
3. If total fisheries-related serious injuries and mortalities are
greater than 0.1 PBR and less than PBR and the population is stable or
increasing, fisheries may be permitted subject to individual review and
certainty of data. Although the PBR level has been set up as a
conservative standard that will allow recovery of a stock, there are
reasons for individually reviewing fisheries if serious injuries and
mortalities are above the threshold level. First, increases in
permitted serious injuries and mortalities should be carefully
considered. Second, as serious injuries and mortalities approach the
PBR level, uncertainties in elements such as population size,
reproductive rates, and fisheries-related mortalities become more
important;
4. If the population abundance of a stock is declining, the
threshold level of 0.1 PBR will continue to be used. If a population is
declining despite limitations on human-related serious injuries and
mortalities below the PBR level, a more conservative criterion is
warranted; or
5. If total fisheries related serious injuries and mortalities are
greater than PBR, permits may not be issued.
In applying these criteria, criterion 1 is the starting point for
analyses. If this criterion is satisfied, the analysis would be
concluded. The remaining criteria describe alternatives under certain
[[Page 42811]]
conditions, such as fishery mortality below the negligible threshold
but other human-caused mortality above the threshold, or fishery and
other human-caused mortality between the negligible threshold and PBR
for a stock that is increasing or stable. If criterion 1 is not
satisfied, NMFS may use one of the other criteria, as appropriate.
On October 30, 2000 (65 FR 64670), NMFS conducted a negligible
impact determination and issued an authorization under MMPA section
101(a)(5)(E) for the CA/OR DGN fishery to incidentally take four stocks
of threatened or endangered marine mammals: humpback whales, sperm
whales, fin whales, and Steller sea lions. To make this determination,
NMFS used the criterion for stable or increasing stocks of threatened
or endangered marine mammals and issued the authorization. The
negligible impact determination concluded that the estimated mortality
and serious injury caused by the CA/OR DGN fishery would cause no more
than a 10 percent increase in the time to recovery for each of the four
stocks of marine mammals; thus, takes below this level were considered
negligible.
Negligible Impact Determination
NMFS evaluated the best available information for species listed as
threatened or endangered under the ESA that interact with the CA/OR DGN
fishery (using observer data from 1998 (post-POCTRP implementation)
through 2005), other fisheries (using primarily stranding and sighting
data from 1998-2005), and other sources of human-caused serious injury
and mortality, and has determined, on a stock-by-stock basis, whether
the incidental mortality and serious injury from all commercial
fisheries is having a negligible impact on such stocks. Based on this
assessment (see criteria used and assessment below), NMFS concludes
that the estimated mortality and serious injury caused by the CA/OR DGN
fishery would have a negligible impact on each of the three stocks of
marine mammals addressed by this permit. Those stocks for which
negligible impact findings were made were then reviewed to confirm
that: 1) a recovery plan has been developed or is being developed for
each of these species, as listed, and 2) where required under section
118, a monitoring program has been established, vessels engaged in such
fisheries are registered, and a take reduction plan has been or is
being developed. NMFS has confirmed that all of these requirements are
currently being met.
For the following stocks with documented evidence of fishery-
related interactions, NMFS has determined that the mortality and
serious injury incidental to the CA/OR DGN fishery, which includes the
proposed EFP, will have a negligible impact and proposes to issue a
permit for incidental takes of the following stocks of endangered
marine mammals:
1. Fin whale, CA/OR/WA stock;
2. Humpback whale, Eastern North Pacific stock; and
3. Sperm whale, CA/OR/WA stock.
A stock-by-stock summary of the negligible impact determination
follows (see ADDRESSES for a draft of the determination).
Fin Whale, CA/OR/WA Stock
The PBR for this stock is 15 whales per year (Carretta et al.,
2006). After the implementation of the POCTRP in late 1997, overall
cetacean entanglement rates in the CA/OR DGN fishery dropped
considerably. Because of the changes in the CA/OR DGN fishery after the
implementation of the POCTRP, mean annual mortality and serious injury
for this fishery is based on 1998-2005 data. Based on an 8-year
average, the annual mean mortality and serious injury rate from the CA/
OR DGN fishery is estimated to be 0.63 whales per year. During the past
16 years, only one fin whale has been observed taken by this fishery
(1999, which is after implementation of the Plan and prior to the 2001
closure off central CA /southern OR), indicating a remote likelihood of
a fin whale take in the CA/OR DGN fishery. The known average annual
human-caused mortality or serious injury, including ship strikes (0.88
animals per year) and incidental to commercial fishing (0.63 animals
per year) for 1998-2005 is 1.5 fin whales , which is 10 percent of the
PBR for the CA/OR/WA fin whale stock. Because total human-caused
mortality and serious injury is below 10 percent of PBR, NMFS
determines that mortality and serious injury incidental to commercial
fishing is having a negligible impact on the CA/OR/WA stock of fin
whales.
Humpback Whale, Eastern North Pacific Stock
The PBR for this stock is 2.3 whales per year (Carretta et al.,
2006). Because of the changes in the CA/OR DGN fishery after the
implementation of the POCTRP, mean annual mortality and serious injury
for this fishery is based on 1998-2005 data. Mean annual mortality and
serious injury rate over this period is zero humpback whales in this
fishery. Commercial fisheries known to incidentally take humpback
whales include crab pot fisheries, unknown pot fisheries, and unknown
net fisheries, based on entangled humpbacks reported off CA. The known
average annual human-caused mortality or serious injury, including ship
strikes (0.25 animals per year) and incidental to commercial fishing
for 1998-2005 (1.5 animals per year) is 1.75 humpback whales or 76.1
percent of the PBR for the Eastern North Pacific humpback whale stock.
Although several humpback whales were entangled in recent years in crab
pot gear and in unknown pot/net fisheries in CA, the total fisheries-
related serious injury and mortality is less than this stock's PBR.
Since the beginning of the NMFS observer program in 1990, there have
been no reported mortalities or serious injuries of humpback whales
attributed to the CA/OR DGN fishery. In addition, after the
implementation of the POCTRP, overall cetacean entanglement rates in
the DGN fishery dropped considerably. Lastly, the population for this
stock is considered to be at least stable and is likely to be
increasing by 6-7 percent per year (Carretta et al., 2006). Based on
this, and because the estimated mortality and serious injury caused by
all Category I and II commercial fisheries, including the CA/OR DGN
fishery, would not cause more than a 10 percent increase in the time to
recovery, a negligible determination can be made under Criterion 3 for
purposes of issuing a permit under MMPA section101(a)(5)(E).
Sperm Whale, CA/OR/WA Stock
The PBR level for this stock is 1.8 whales per year (Carretta et
al., 2006). Because of the changes in the CA/OR DGN fishery after the
implementation of the Plan, mean annual takes are based only on
observer data from 1998-2005. This results in a mean annual mortality
and serious injury rate of 0.63 sperm whales per year from the CA/OR
DGN fishery. In 1998, one sperm whale was observed killed in a net that
was not in compliance with the Plan (also taken prior to the 2001
closure off central California/southern Oregon). The Pacific Offshore
Cetacean Take Reduction Team (Team) and the Pacific Scientific Review
Group both recommended no further strategies to reduce sperm whale
entanglement be taken until the effectiveness of pingers is better
understood. Based upon the recommendation of the Team to increase
compliance with the POCTRP (use of pingers), vessel operators were
encouraged at skipper education workshops to use the full complement of
pingers when deploying their nets.
[[Page 42812]]
Furthermore, NMFS enforcement officials met with the United States
Coast Guard to train boarding personnel on the requirements of the plan
and requested their assistance for at-sea enforcement. The known
average annual human-caused mortality or serious injury, including ship
strikes (0.38 animals per year) and incidental to commercial fishing
(0.75 animals per year) for 1998-2005 is 1.13 sperm whales, or 62.5
percent of the PBR for the CA/OR/WA sperm whale stock.
The minimum population estimate for this stock is considered to be
variable, with no obvious trend (Carretta et al., 2006). However, the
overall population of sperm whales has increased worldwide since it was
listed under the ESA in 1973, and although it is difficult to determine
a trend for the CA/OR/WA stock of sperm whales, this stock does not
appear to be declining. The average annual fisheries-related mortality
and serious injury for this stock is below PBR. There has not been a
take of sperm whales in the CA/OR DGN fishery since 1998 and the
likelihood that a sperm whale would be taken by the CA/OR DGN fishery
is very low, especially given compliance with the POCTRP. Based on the
trend of this stock of marine mammals, the existing management measures
on the fishery, and that the estimated mortality and serious injury
caused by all Category I and II commercial fisheries, including the CA/
OR DGN fishery, would not cause more than a 10 percent increase in the
time to recovery, a negligible determination can be made under
Criterion 3 for purposes of issuing a permit under MMPA section
101(a)(5)(E).
Proposed Actions and Information Solicited
Negligible Impact
As required by the MMPA and as summarized above, NMFS has made a
preliminary determination that incidental mortality and serious injury
incidental to commercial fishing will have a negligible impact on the
CA/OR/WA stock of fin whales, the Eastern North Pacific stock of
humpback whales, and the CA/OR/WA stock of sperm whales. A draft of the
determination is available for public review (see ADDRESSES), and NMFS
solicits public comments on this draft determination.
Recovery Plans
A recovery plan for humpback whales was completed and issued in
1991. This plan is available on the Internet (see ADDRESSES). NMFS had
previously solicited public comments on a draft recovery plan for fin
whales and sei whales (Balaenoptera borealis) (63 FR 41802, August 5,
1998); however, the plan was not completed. Subsequently, the
information related to fin whales was separated from that of sei
whales, and more recent information has been included in a draft
recovery plan for fin whales. The draft recovery plan for fin whales is
available for public review and comment (71 FR 38385, July 6, 2006).
Also, NMFS has prepared a draft recovery plan for sperm whales, and
this draft plan is available for public review and comment (71 FR
38385, July 6, 2006). These draft plans are available on the Internet
(see ADDRESSES). Accordingly, NMFS determines that recovery plans for
the affected endangered species of marine mammals have been or are
being developed.
MMPA Section 118 Requirements
As noted in Carretta et al. (2006, see Appendix 1. Descriptions of
U.S. Commercial Fisheries) an observer program has been in place in the
CA/OR DGN fishery since 1990. The fishery has been included in the LOF
since the list was initiated under MMPA section 118. The proposed 2006
LOF (71 FR 20941, April 24, 2006) estimates 85 vessels in the fishery,
57 vessels were registered in 2005, and 49 vessels are currently
registered as required by MMPA section 118(c). NMFS anticipates
additional vessels will be registered prior to the start of the fishing
season. NMFS promulgated final regulations to implement the POCTRP on
October 3, 1997 (62 FR 51805). The plan was subsequently revised to
modify specifications for deploying pingers, which allowed safer
deployment (64 FR 3431, January 22, 1999). These regulations are
available on the Internet (see ADDRESSES). Accordingly, NMFS determines
that the requirements of MMPA section 118 have been satisfied for the
CA/OR DGN fishery.
Proposed Action
The impacts of implementing the HMS FMP, including the taking of
threatened and endangered species of marine mammals, were analyzed in
an Environmental Impact Statement for the HMS FMP and in a biological
opinion prepared in February 2004 on the proposed adoption of the HMS
FMP. The proposed permit would have no additional impact to the human
environment beyond those analyzed in February 2004; therefore,
additional environmental analyses were not conducted. Based on
requirements of section 101(a)(5)(E) of the MMPA, NMFS proposes to
issue a permit to allow the incidental, but not intentional, taking of
three stocks of endangered or threatened marine mammals to the CA/OR
DGN fishery, fin whale, CA/OR/WA stock; humpback whale, Eastern North
Pacific stock; and sperm whale, CA/OR/WA stock. This permit may be
suspended or revoked if the level of take is likely to result in an
impact that is more than negligible. As required by the MMPA, NMFS has
determined that a recovery plan has been developed or is being
developed for each of these species and that a monitoring program has
been established, vessels engaged in the subject fishery are
registered, and a take reduction plan has been developed. NMFS solicits
public comments on this proposed permit.
References
Barlow, J., S. Swartz, T. Eagle and P. Wade. 1995. U.S. Marine
Mammal Stock Assessments: Guidelines for Preparation, Background, and a
Summary of the 1995 Assessments. U.S. Department of Commerce, NOAA-TM-
NMFS-SWFSC-219. 162 p.
Carretta, J.V., K.A. Forney, M.M. Muto, J. Barlow, J. Baker, B.
Hanson, and M.S. Lowry. 2006. U.S. Pacific Marine Mammal Stock
Assessments: 2005. U.S. Department of Commerce, NOAA-TM-NMFS-SWFSC-388.
Pacific Fishery Management Council. 2003. Final Environmental
Impact Statement for U.S. West Coast Fisheries for Highly Migratory
Species.
Dated: July 25, 2006.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. E6-12127 Filed 7-27-06; 8:45 am]
BILLING CODE 3510-22-S