[Federal Register Volume 65, Number 210 (Monday, October 30, 2000)]
[Notices]
[Pages 64670-64674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27822]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 050500F]
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 of issuance of permit.
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SUMMARY: NMFS hereby issues a permit for a period of 3 years, to
authorize the incidental, but not intentional, taking of four stocks of
threatened or endangered marine mammals by the California/Oregon (CA/
OR) drift gillnet fishery. The four stocks are: fin whale, California/
Oregon/Washington stock; humpback whale, California/Oregon/Washington-
Mexico stock; Steller sea lion, eastern stock; and sperm whale,
California/Oregon/Washington stock. This authorization is based on a
determination that this incidental take will have a negligible impact
on the affected marine mammal stocks.
DATES: This permit is was issued on October 24, 2000, and is effective
through October 24, 2003.
ADDRESSES: Copies of the reference materials and Environmental
Assessment (EA) may be obtained from Protected Resources Division,
National Marine Fisheries Service, Southwest Region, 501 West Ocean
Blvd., Suite 4200, Long Beach, CA 90802-4213. Attention: Tim Price.
FOR FURTHER INFORMATION CONTACT: Tim Price, NMFS, Southwest Region,
Protected Resources Division, (562) 980-4029.
SUPPLEMENTARY INFORMATION: Section 101(a)(5)(E) of the Marine Mammal
Protection Act (MMPA) (16 U.S.C. 1371(a)(5)(E)) requires the
authorization of the incidental taking of individuals from marine
mammal stocks listed as threatened or endangered under the Endangered
Species Act (ESA) in the course of commercial fishing operations if
NMFS determines that (1) the 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 June 6, 2000 (65 FR 35904), NMFS proposed the issuance of a
permit, for a period of 3 years, to authorize the incidental, but not
intentional, taking of four stocks of threatened or endangered marine
mammals by the CA/OR drift gillnet fishery under section 101(a)(5)(E)
of the MMPA.
Four letters of comment were received concerning the proposal for
issuance of a permit. All of these letters were in opposition to the
issuance of a permit.
Comment 1: Two commenters requested that the comment period be
extended to provide additional time to prepare a detailed response.
Response: NMFS believes that a 45-day comment period was sufficient
time for public comment and is consistent with the process established
at 50 CFR 229.20 for issuance of a permit to authorize the incidental
take of threatened or endangered marine mammals species under section
101(a)(5)(E) of the MMPA.
Comment 2: One commenter felt that a permit should not be issued if
the permit would allow the incidental taking of threatened or
endangered species under the ESA.
Response: Under section 101(a)(5)(E) of the MMPA, the Secretary of
Commerce (Secretary) must allow the incidental, but not intentional,
taking of marine mammals from a species or stock designated as depleted
because of its listing as an endangered or threatened species under the
ESA if the Secretary determines that the incidental mortality and
serious injury from commercial fisheries will have a negligible impact
on such species or stock, that a recovery plan has been developed or is
being developed, and that the provisions of section 118 are being met.
The Secretary cannot refuse to issue a permit under section
101(a)(5)(E) if the conditions set forth in the MMPA have been met.
Comment 3: One commenter stated that NMFS should not issue a
101(a)(5)(E) permit to the CA/OR drift gillnet fishery because there is
incidental take of sperm whales, marlin, skipjack tuna, and blue
sharks.
Response: The potential biological removal (PBR) level for the
California/Oregon/Washington sperm whale stock is 2.0 whales per year.
The CA/OR drift gillnet fishery is the only fishery likely to
incidentally take a sperm whale from this stock. Using a 3-year average
(1997-1999), the mean annual mortality and serious injury rate from the
CA/OR drift gillnet fishery is estimated to be 1.7 sperm whales. In
1998, one sperm whale was observed killed in a net that was not in
compliance with the Pacific Offshore Cetacean Take Reduction Plan
(Plan) developed for the CA/OR drift gillnet fishery. The Pacific
Offshore Cetacean Take Reduction Team (Team) recommended no further
strategies to reduce sperm whale entanglements be implemented until the
effectiveness of pingers is better understood. The estimated annual
mortality using a 3-year average is less than PBR and would cause no
more than a 10-percent increase in the time needed to achieve recovery.
NMFS has determined that an activity that slows the rate of recovery of
depleted marine mammals to pre-exploitation levels by no more than 10-
percent delay is considered a ``negligible impact'' for purposes of
issuing a permit under section 101(a)(5)(E) of the MMPA. The incidental
taking of marlin, skipjack tunas, and blue shark is not relevant to the
determination about issuing a permit under section 101(a)(5)(E) of the
[[Page 64671]]
MMPA, which addresses only marine mammals listed under the ESA.
Comment 4: One commenter indicated that NMFS is abandoning its
current formula for determining the ``negligible impact'' threshold in
favor of a calculation that substantially decreases protection and
increases risks for listed species.
Response: The new approach for determining negligible impact is
consistent with the guidelines prepared by the Marine Mammal Commission
(Commission), and submitted to NMFS in 1990 to be used in its
development of a regime to govern the mortality and serious injury of
marine mammals incidental to commercial fishing operations. In the
guidelines, the Commission stated that a negligible impact would cause
no more than a 10-percent delay in a severely depleted stock's
recovery. This commenter correctly notes that the criterion the
determination used as an initial estimate of the negligible impact
threshold is different than that used in 1995 when permits under MMPA
section 101(a)(5)(E) were issued for the first time. While this new
approach may be slightly less conservative than the approach used in
1995, the approach does not significantly affect the recovery rate of
the stock.
Comment 5: By allowing fisheries related mortality up to 100
percent of the PBR level, the proposal essentially renders the margin
of safety created by the recovery factor meaningless and, thereby,
reduces protection for listed species.
Response: The approach used in this negligible impact determination
could authorize the mortality and serious injury to equal the PBR level
of some stocks of marine mammals (i.e., those stocks with a recovery
factor of 0.1 in the PBR equation) and does reduce protection as
compared to the extremely conservative approach previously used. The
protection, although reduced from the former approach (10 percent of
PBR), is appropriate for the stocks involved and is consistent with the
Commission's recommendation to NMFS for a quantitative estimate for
negligible impact. The legislative proposal that NMFS submitted to
Congress in 1992 adopted the Commission's recommendation of 10 percent
delay in recovery in a statement that 90 percent of an endangered
marine mammal stock's annual production should be reserved for recovery
and that only 10 percent should be authorized for removal incidental to
human activity. Intensive simulation modeling of marine mammal
populations showed no more than a 10-percent delay in recovery would
result when human-caused mortality was below a threshold defined by
one-tenth of the product of the stock's minimum population estimate
(Nmin) and one-half of its maximum net productivity rate (1/2 Rmax)
(i.e., 0.1 * Nmin * 1/2 Rmax). Such a threshold is the equivalent of a
stock's PBR when calculated with a recovery factor of 0.1. When
applying the former criterion (10 percent of PBR) to a stock with a
recovery factor of 0.1 in the PBR equation, the result could be an
order of magnitude more restrictive than is necessary to achieve the
stated goal of negligible impact. As in the determinations for the 1995
permit, NMFS uses this threshold as a starting point in the
determination, rather than a mechanical application of a general
formula, to ensure that the incidental mortality and serious injury
would cause no more than a negligible impact.
Comment 6: One commenter suggested that it was inappropriate and
scientifically unsound to issue permits for increased takings of
federally listed marine mammal species based on such a small sample
size and limited amount of monitoring data (low observer coverage)
obtained since implementation of the Plan.
Response: NMFS disagrees. The issuance of a permit to allow for the
taking of marine mammal species listed under the ESA does not authorize
an increase in taking. The issuance of a permit authorizes the fishery
to lawfully take species listed under the ESA provided the incidental
taking is negligible. Observer coverage for 1997 (the effective date of
the Plan was October 30, 1997), 1998, and 1999, has averaged 20
percent. Twenty-percent observer coverage is considered adequate for
estimating protected species interactions in the CA/OR drift gillnet
fishery. During this time, there was only one sperm whale observed
taken, and this take was in a net that was not equipped with
``pingers'' (acoustic deterrent devices) and thus was not deployed in
compliance with the Plan. More importantly, overall cetacean mortality
has decreased for sets in which pingers are used.
Comment 7: One commenter indicated that a permit should not be
issued because the sperm whale takes from the Mexican drift gillnet
fishery were not considered.
Response: NMFS disagrees. The CA/OR drift gillnet fishery takes
sperm whales from the California/Oregon/Washington stock. For
management purposes, this stock does not include animals of the Mexican
sperm whale population. Although large populations of sperm whales
exist in waters south of the California/Oregon/Washington region, there
is no evidence of sperm whale movements into this region. Moreover,
NMFS understands that Mexican fishermen have converted their drift
gillnet fleet along Baja California to longline vessels.
Comment 8: One commenter noted that the 1999 Stock Assessment
Report (SAR) for sperm whales calculated an incidental mortality by the
fishery of 4.6 animals per year, using a 5-year average, and the draft
2000 SAR calculated a mean annual take of 2.5 whales, using 1997 and
1998 data, which is greater than the calculated PBR level. The
commenter also stated that the use of only 2 years of data is
problematic, given the small sample size and the low level of observer
coverage.
Response: NMFS disagrees. To more accurately reflect entanglement
rates after the implementation of the Plan (minimum 6-fathom extenders,
skipper education workshops, and the use of pingers), the Scientific
Review Group (SRG), which consists of independent (non-Federal)
individuals with expertise in population dynamics and modeling,
recommended that mortality averaging should use data from 1997 (the
year the Plan was implemented) and beyond (up to 5 years). The data
presented in the 1999 SARs were collected before the Plan was
implemented. Therefore, for all marine mammal species incidentally
taken in the fishery, mean annual mortality estimates in the SARs will
use data collected since the implementation of the Plan. At the time
that the draft 2000 SARs were prepared, NMFS had only 2 years of
observer data available to estimate mean annual mortality subsequent to
the implementation of the Plan. By including the 1999 observer data to
calculate the mean annual mortality for the fishery, NMFS is using the
best scientific information available to estimate mortality under the
Plan. NMFS agrees that 5 years of data collected under the Plan will
provide a greater precision for the mortality estimate. In addition,
NMFS believes that a 20-percent observer coverage is sufficient to
provide an appropriate level of accuracy for calculating overall
mortality estimates.
Comment 9: One commenter indicated that, because the use of pingers
is one of the primary measures for reducing take under the Plan, NMFS
should include the observed sperm whale that was entangled in 1996,
before the implementation of the Plan, because pingers were attached to
the net during the set.
Response: NMFS disagrees. Although the sperm whale was taken in a
set in which pingers were attached, the pinger
[[Page 64672]]
configuration did not comply with the Plan. Under the Plan, a net 1,000
fathoms long is required to have 41 pingers attached alternating
between the floatline and the leadline, spaced 300 feet (50 fathoms)
apart. The sperm whale observed taken in 1996 was in a set in which the
net had only 33 pingers attached. Moreover, the SRG recommended that
using 1997 and 1998 data would be most appropriate because the data
would most accurately reflect entanglement rates after the changes in
the fishery imposed by the Plan, even though the data are inconclusive
about whether pingers affect sperm whale entanglement rates. The group
agreed the same 2-year mortality averaging should be applied
consistently in estimating mean annual mortality for all species
incidentally taken in the CA/OR drift gillnet fishery when preparing
the 2000 Marine Mammal SAR.
Comment 10: One commenter felt that because calendar year 1996 had
12.4-percent observer coverage, the estimated incidental take of sperm
whales in 1996 should be 8. Using this assumption, the commenter
calculated the mean annual take level for calendar years 1997, 1998,
and 1999, to be 3.25, which is greater than the PBR level of two
animals per year in the 2000 draft U.S. Pacific Marine Mammal SAR.
Response: NMFS disagrees. During the last 5 months (August through
December) of 1996, NMFS's observer program conducted a pinger
experiment. As part of the experiment, sets were randomly selected to
have pingers attached to the floatline and leadline of the net. Because
only vessels that carried an observer participated in the experiment,
mortality estimation for the fleet was based on the number of observed
sets that did not have pingers attached to the net. The number of
observed sets without pingers attached to the net used for estimation
was 275, which represents overall fleet observer coverage of 8.5
percent. Mortality observed for sets using pingers was treated as a
constant and added to estimates of mortality for sets not using
pingers. Estimates were determined in this way because preliminary
results indicated use of pingers may decrease cetacean entanglement. If
a species was taken in sets deployed with pingers, but not in sets
without pingers, the resultant mortality was a constant without an
associated standard error such as the single sperm whale entanglement.
For this reason, the sperm whale estimated mortality in 1996 was one,
rather than eight, as suggested by the commenter.
Comment 11: One commenter questioned whether a permit could be
issued under section 101(a)(5)(E) of the MMPA because there is
insufficient evidence to support NMFS' determination that the
California/Oregon/Washington sperm whale stock is stable because of the
uncertainty of the data.
Response: NMFS disagrees. Although the draft 2000 U.S. Pacific
Marine Mammal SAR does not explicitly state that the population is
stable or increasing, the report indicates that the California/Oregon/
Washington sperm whale population has been variable possibly because
sperm whale distribution in these waters may vary annually. This
variability does not mean that the population is decreasing, but rather
the trend is not obvious. In addition, there is evidence that indicates
the sperm whale population abundance estimate is an underestimate of
true abundance because recent studies suggest sperm whale group sizes
may have been underestimated on past line-transect surveys.
Furthermore, because a recovery factor of 0.1 is used for the
California/Oregon/Washington sperm whale stock, a proportion of the
expected net production is allocated towards population growth and
compensates for uncertainties that might prevent population recovery,
such as biases in the estimation of the minimum population size and
maximum growth rates, or errors in the determination of stock
structure. Therefore, the uncertainty in the abundance estimate is
considered when calculating the PBR value.
Comment 12: One commenter questioned whether a permit could be
issued before a sperm whale recovery plan has been circulated for
public review.
Response: Section 101(a)(5)(E) of the MMPA requires that ``a
recovery plan has been developed or is being developed.'' There
currently is a recovery plan being developed for the sperm whale
although the draft has not been finalized yet or circulated for public
review.
Comment 13: One commenter questioned the incidental take
calculations derived for the humpback whale because the calculations do
not include take estimates for the California salmon troll fishery or
for the Mexican fisheries.
Response: Under section 101(a)(5)(E), NMFS is required to determine
whether the incidental mortality and serious injury by commercial
fisheries will have a negligible impact on a species or stock listed as
threatened or endangered under the ESA. In analyzing the impact of
commercial fisheries on humpback whales, NMFS did not include the
humpback whale snagged by a central California salmon troller because
the interaction was classified as an injury, rather than a serious
injury or mortality. In addition, because the California/Oregon/
Washington - Mexico humpback whale stock spends approximately half of
its time outside the U.S. EEZ (Mexican waters), the PBR for U.S. waters
is only half of the overall PBR for the stock, which is intended to
account for the amount of time the stock spends outside the U.S.
exclusive economic zone (EEZ). For management purposes, NMFS calculates
PBR values and mortality estimates for trans-boundary stocks based on
the fraction of time in U.S. waters and the mortality estimate based on
the calculated estimate of the stock residing in U.S. waters.
Comment 14: One commenter questioned whether a permit should be
issued for fin whales because the estimated mean annual mortality is
greater than the PBR value reported in the 1996 U.S. Pacific Marine
Mammal SAR.
Response: NMFS did not use the PBR value reported in the 1996 U.S.
Pacific Marine Mammal SAR because the most recent PBR information is in
the draft 2000 U.S. Pacific Marine Mammal SAR. Using a 3-year average
(1997, 1998, 1999), the mean annual estimated mortality for fin whales
(1.7) is less than the PBR level (2.1) in the draft 2000 U.S. Pacific
Marine Mammal SAR.
Comment 15: One commenter questioned whether a permit should be
issued if the mean annual take (1997-1999) of the fin whales may be
greater than the PBR value reported in the 2000 U.S. Pacific Marine
Mammal SAR.
Response: Although the estimated mortality level in the SAR is near
the PBR level for the fin whale stock, NMFS had determined that the
history of mortality of fin whales incidental to the driftnet fishery
has had a negligible impact on the fishery. The other conditions
regarding the issuance of the permit have been satisfied; therefore,
NMFS must issue the permit.
The negligible impact determination was based upon the 10-year
history of the observer program in the fishery. The take observed in
1999 was the only observed mortality during that period. Consequently,
NMFS determined that the fishery had a remote likelihood of taking fin
whales on an annual basis, which would result in a negligible impact.
The mortality estimate in the SAR was based upon 3 years of data,
which is the period that the fishery has been under a take reduction
plan. There is no reason to believe that the conservation measures
included in the plan (lowered head rope and pinger-equipped nets)
[[Page 64673]]
would make the nets more likely to take a fin whale. Therefore, using
the 10-year history of observer data in the fishery was appropriate for
use in the negligible impact determination.
Comment 16: One commenter stated that a permit should not be issued
to the CA/OR drift gillnet fishery for the taking of fin whales because
mortality from the Mexican drift gillnet fishery was not considered
when calculating the estimated mortality from all commercial fisheries.
Response: NMFS disagrees. The fin whale that was taken by the CA/OR
drift gillnet fishery was from the California/Oregon/Washington fin
whale stock. For management purposes, this stock does not include
animals of the Mexican fin whale stock because there is insufficient
information at this time to conclude that the fin whale population that
increases seasonally in winter and spring in the Gulf of California is
part of the California/Oregon/Washington fin whale stock.
Comment 17: One commenter stated that a permit should not be issued
to the CA/OR drift gillnet fishery for the take of fin whales because
mortality from ship strikes was not considered when calculating the
estimated mortality from all commercial fisheries.
Response: NMFS disagrees. Under section 101(a)(5)(E) of the MMPA,
NMFS must determine whether the incidental mortality and serious injury
from commercial fisheries will have a negligible impact on such species
or stock. For purposes of issuing a permit, NMFS is not required to
consider mortality caused by ship strikes.
Comment 18: One commenter stated that a permit may not be issued
unless a full and proper National Environmental Policy Act (NEPA)
analysis is completed.
Response: NMFS agrees. An EA was prepared for this permit.
Comment 19: One commenter requested that NMFS significantly
increase observer coverage levels for the CA/OR drift gillnet fishery
as a condition of any future federal authorizations because the
incidental take analysis is highly speculative.
Response: NMFS believes that 20-percent observer coverage is
sufficient to calculate reliable mortality estimates for species listed
under the MMPA and the ESA even though entanglement events are rare.
For this reason, NMFS does not intend to require additional observer
coverage as a condition of issuing a permit under section 101(a)(5)(E)
of the MMPA.
Summary of Findings
NMFS has evaluated the best available information for the four
stocks listed as threatened or endangered under the ESA addressed by
this permit and has determined, on a stock-by-stock basis, whether the
mortality and serious injury (using 3-year averages 1997, 1998, 1999)
incidental to the CA/OR drift gillnet fishery is having a negligible
impact on such stocks (NMFS, 2000). Based on this assessment, NMFS
concludes that the estimated mortality and serious injury caused by the
CA/OR drift gillnet fishery would cause no more than a 10-percent
increase in the time to recovery for each of the four stocks of marine
mammals addressed by this permit and is, therefore, negligible.
These stocks were then reviewed to confirm that: (1) a recovery
plan has been developed or is being developed, and (2) where required
under section 118 of the MMPA, a monitoring program has been
established, vessels engaged in such fisheries are registered, and a
take reduction plan has been, or is being, developed.
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 drift gillnet fishery will have
a negligible impact and issues a permit for incidental takes of:
(1) Fin whale, California/Oregon/Washington stock;
(2) Humpback whale, California/Oregon/Washington-Mexico stock;
(3) Steller sea lion, eastern stock; and
(4) Sperm whale, California/Oregon/Washington stock.
A stock-by-stock summary of the negligible impact determination
follows.
Fin whale, California/Oregon/Washington stock: The PBR for this
stock is 2.1 whales per year. After the 1997 implementation of the
Plan, overall cetacean entanglement rates in the CA/OR drift gillnet
fishery dropped considerably. Using a 3-year (1997-1999) average, the
annual mean mortality and serious injury rate from the CA/OR drift
gillnet fishery is estimated to be 1.7. In addition, during the past 10
years, only one fin whale has been observed taken in this fishery,
indicating a remote likelihood of a fin whale take in the CA/OR drift
gillnet fishery.
Humpback whale, California/Oregon/Washington-Mexico stock: The PBR
level for this stock is 1.7 whales per year. Using a 3-year average
(1997-1999), the mean annual mortality and serious injury rate from the
CA/OR drift gillnet fishery is estimated to be 0.0 humpback whales. One
observed humpback whale entanglement in 1999 was released alive without
any trailing gear and was not considered a serious injury or mortality.
Since the beginning of the observer program in 1990, there have been no
reported mortalities or serious injuries of humpback whales.
Steller sea lion, eastern stock: The PBR level for this stock is
1,368 animals per year. Fishery observers monitored the CA/OR drift
gillnet fishery between 1990 and 1999. In both 1992 and 1994, one
Steller sea lion mortality was observed incidental to this fishery.
Using a 3-year average (1997-1999), the mean annual mortality and
serious injury rate from the CA/OR drift gillnet fishery is estimated
to be 0.0 animals for the CA/OR drift gillnet fishery.
Sperm whale, California/Oregon/Washington stock: The PBR level for
this stock is 2.0 whales per year. In 1998, one sperm whale was
observed killed in a net that was not in compliance with the Plan.
Using a 3-year average (1997-1999), the mean annual mortality and
serious injury rate from the CA/OR drift gillnet fishery is estimated
to be 1.7 sperm whales. The Team recommended no further strategies to
reduce sperm whale entanglement be taken until the effectiveness of
pingers is better understood. At the recommendation of the Team, NMFS
conducted workshops to educate vessel operators on the need to use the
full complement of pingers required by the Plan. NMFS enforcement also
trained the U.S. Coast Guard about the requirements of the Plan and
requested their assistance with at-sea enforcement.
NMFS prepared an EA on the final rule to implement the Plan (62 FR
51805, October 3, 1997). That EA has been reissued and modified to
include the effects of: (1) issuance of this permit, (2) additional
species of sea turtles and marine mammals, (3) minor changes to the
Plan.
Issuance of Permits
Based on requirements of section 101(a)(5)(E) of the MMPA, NMFS is
issuing a permit to allow the incidental, but not intentional, taking
of four stocks of endangered or threatened marine mammals to the CA/OR
drift gillnet fishery: (1) fin whale, California/Oregon/Washington
stock; (2) humpback whale, California/Oregon/Washington-Mexico stock;
(3) Steller sea lion, eastern stock; and (4) sperm whale, California/
Oregon/Washington stock. These permits may be suspended or revoked if
the level of take is likely to result in an impact that is more than
negligible.
[[Page 64674]]
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
Technical Memorandum NMFS-SWFSC-219. 162 p.
Cameron, G.A., and K.A. Forney. 2000. Preliminary Estimates of
Cetacean Mortality in California/Oregon Gillnet Fisheries for 1999.
Intl. Whal. Comm. Working paper. SC/52/024.
National Marine Fisheries Service. 2000. Assessment for Issuing a
Permit Under Section 101(a)(5)(E) of the Marine Mammal Protection Act
to the California/Oregon Drift Gillnet Fishery. Southwest Region,
Protected Resources Division.
Dated: October 24, 2000.
Donald R. Knowles,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 00-27822 Filed 10-27-00; 8:45 am]
BILLING CODE 3510-22-S