[Federal Register Volume 75, Number 216 (Tuesday, November 9, 2010)]
[Notices]
[Pages 68767-68773]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28280]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XZ23


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

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

ACTION: Notice; request for comments.

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[[Page 68768]]

SUMMARY: NMFS proposes to issue a permit for a period of three years to 
authorize the incidental, but not intentional, taking of individuals 
from six marine mammal stocks listed under the Endangered Species Act 
(ESA) by groundfish fisheries in the Bering Sea and the Gulf of Alaska. 
In accordance with the Marine Mammal Protection Act (MMPA), NMFS has 
made a preliminary determination that incidental taking from commercial 
fishing will have a negligible impact on the endangered Central North 
Pacific (CNP) stock of humpback whales, Western North Pacific (WNP) 
stock of humpback whales, Northeast Pacific (NEP) stock of fin whales, 
North Pacific stock of sperm whales, and Western U.S. stock of Steller 
sea lions; and on the threatened Eastern U.S. stock of Steller sea 
lions. NMFS has insufficient funds to complete TRPs for the two stocks 
of humpback whales, for the North Pacific stock of sperm whales, and 
for the Western U.S. stock of Steller sea lions. Take Reduction Plans 
(TRPs) are not required for the NEP stock of fin whales or the Eastern 
U.S. stock of Steller sea lions because mortality and serious injury of 
these stocks incidental to commercial fishing operations are at 
insignificant levels approaching a zero mortality and serious injury 
rate. Recovery plans are being prepared or have been completed for 
these threatened or endangered species. A monitoring plan is in place, 
and vessels have been registered under the MMPA for the fisheries 
included in this proposed permit. Accordingly, NMFS proposes to issue 
the required permits to participants in the Alaska-based groundfish 
fisheries. NMFS solicits public comments on the negligible impact 
determination and on the proposal to issue this permit.

DATES: Comments must be received by November 24, 2010.

ADDRESSES: A draft Negligible Impact Determination (NID) for five of 
the affected stocks is available on the Internet at the following 
address: http://www.alaskafisheries.noaa.gov/index/analyses/analyses.asp. The final NID for the sixth stock, CNP humpback whales, 
is available on the Internet at the following address: http://www.fpir.noaa.gov/PRD/prd_humpback.html. Recovery plans for these 
species are available on the Internet at the following address: http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals.
    Address all comments to Kaja Brix, Assistant Regional 
Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: 
Ellen Sebastian. Comments may be submitted by e-mail to 
mmpapermitAK@noaa.gov. Include in the subject line the following 
document identifier: 0648-XZ23 permit. E-mail comments with or without 
attachments are limited to 5 megabytes. Written comments should be sent 
to Kaja Brix, Assistant Regional Administrator, Protected Resources 
Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802. 
Comments may be hand-delivered to the Federal Building, 709 West 9th 
Street, Room 420A, Juneau, AK; or may be faxed to (907) 586-7557.
    All comments received are a part of the public record. All Personal 
Identifying Information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information. 
Comments received after the 15-day comment period may not be considered 
or made part of the record.

FOR FURTHER INFORMATION CONTACT: Dana J. Seagars, Protected Resources 
Division AKR, (907) 271-5005, or Tom Eagle, Office of Protected 
Resources, (301) 713-2322, ext. 105.

SUPPLEMENTARY INFORMATION: NMFS is now considering the issuance of a 3-
year permit under MMPA section 101(a)(5)(E) (16 U.S.C. 1371(a)(5)(E)) 
to participants registered in certain Alaska-based groundfish fisheries 
to incidentally take individuals from five marine mammal stocks listed 
as endangered under the ESA: The CNP stock of humpback whales, the WNP 
stock of humpback whales, the NEP stock of fin whales, the North 
Pacific stock of sperm whales, and the Western U.S. stock of Steller 
sea lions, and from one stock, the Eastern U.S. stock of Steller sea 
lions, listed as threatened.
    Taking of individuals from these threatened or endangered stocks of 
marine mammals would be authorized incidental to operation of the 
following Federal and State-parallel Category II groundfish fisheries: 
the AK Bering Sea/Aleutian Islands flatfish trawl, AK Bering Sea/
Aleutian Island pollock trawl, AK Bering Sea sablefish pot, and AK 
Bering Sea/Aleutian Islands Pacific cod longline fisheries. Because 
other stocks of threatened or endangered marine mammals are not taken 
incidental to groundfish fisheries in Alaska, no other species or 
stocks are considered for this proposed permit. There are no Category I 
fisheries designated in Alaska. Participants in Category III fisheries 
are not required to obtain incidental take permits under MMPA section 
101(a)(5)(E) but are required to report injuries or mortalities of 
marine mammals incidental to their operations for the taking to be 
authorized after a NID has been made. NMFS will consider issuing 
permits at a future date for the taking of the subject threatened or 
endangered species by participants in State-managed fisheries other 
than the State-parallel groundfish fisheries. State-parallel groundfish 
fisheries are included in this proposed permit. The data for 
considering these authorizations were reviewed coincident with the 
preparation of the proposed 2011 MMPA List of Fisheries (LOF) (75 FR 
36318, June 25, 2010), the draft 2010 marine mammal stock assessment 
reports (dSAR) (Allen and Angliss 2010), and other relevant sources.
    MMPA section 101(a)(5)(E) requires NMFS to authorize the incidental 
taking of individuals from marine mammal species or stocks listed as 
threatened or endangered under the ESA 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 MMPA section 118, and a TRP has been developed or is 
being developed for such species or stock.

Determining Negligible Impact in Fisheries

    Prior to issuing a permit to take ESA-listed marine mammals 
incidental to commercial fishing, NMFS must determine if that mortality 
and serious injury incidental to commercial fisheries will have a 
negligible impact on the affected species or stocks of marine mammals. 
NMFS satisfied this requirement through completion of a NID. NMFS 
clarifies that incidental mortality and serious injury include only 
direct mortality and serious injury, such as from entanglement or 
hooked in fishing gear. Indirect effects, such as the effects of 
removing prey from habitat, are not included in this analysis. An 
opinion prepared under ESA section 7 considers direct and indirect 
effects of Federal actions and, thus, contains a broader scope of 
analysis than is required by MMPA section 101(a)(5)(E).
    Although the MMPA does not define ``negligible impact'', NMFS has 
issued regulations providing a qualitative definition of negligible 
impact (50 CFR 216.3) and, through scientific analysis,

[[Page 68769]]

peer review, and public notice, developed a quantified approach and a 
process to make such determinations. The development of the approach 
and process was outlined in detail in the current draft NID made 
available through this notice and was included in previous notices for 
other permits to take threatened or endangered marine mammals 
incidental to commercial fishing (e.g., proposed for CNP humpback 
whales in 75 FR 8305, February 24, 2010 and final in 75 FR 29984, May 
28, 2010).
    NMFS has adopted the following criteria for making a negligible 
impact determination relevant to incidental take permits (64 FR 28800, 
May 27, 1999):
    (1) The threshold for initial determination will remain at 10 
percent of the Potential Biological Removal level (PBR). If total 
human-related serious injuries and mortalities are less than 10 percent 
of 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 10 
percent of 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 are 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 10 percent of 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 10 percent of 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.
    (5) If total fisheries-related serious injuries and mortalities are 
greater than PBR, permits may not be issued.
    The NID 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 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 NID Criterion (1) is not satisfied, NMFS may 
use one of the other criteria, as appropriate.

Description of the Fisheries

    The following are the Federally-authorized and State-parallel 
groundfish fisheries classified as Category II in the 2010 LOF which 
are known to seriously injure or kill ESA-listed marine mammals 
incidental to commercial fishing operations. Detailed descriptions of 
these fisheries can be found in the June 2004 Alaska Groundfish 
Fisheries Final Supplemental Programmatic Environmental Impact 
Statement (http://alaskafisheries.noaa.gov/sustainablefisheries/seis/) 
and in NMFS (2010), a draft Biological Opinion (BiOp) on the groundfish 
fishery management plan the fisheries addressed in the draft BiOp 
henceforth are collectively referred to as the ``Alaska groundfish 
fisheries.'' Certain aspects of the fisheries may be altered due to 
reasonable and prudent alternatives included in the BiOP; however, 
these changes in fishing operations are not expected to result in 
increased levels of mortality and serious injury of marine mammals, 
including threatened and endangered species.

Bering Sea/Aleutian Islands Flatfish Trawl

    In 2008 the Amendment 80 program allocated most of the Bering Sea 
and Aleutian Islands (BSAI) rock sole, flathead sole, and yellowfin 
sole allocations to the trawl catcher processor sectors using bottom 
trawl gear. Other vessel categories and gear types catch some rock 
sole, flathead sole, and other flatfish incidentally in other directed 
fisheries. In 2009, 30 vessels targeted flatfish in the BSAI. Rock sole 
is generally targeted during the roe season. Then these vessels shift 
to several different targets, notably Atka mackerel, arrowtooth 
flounder, flathead sole, yellowfin sole, Pacific cod, and Pacific ocean 
perch. Vessels also can go into the Gulf of Alaska to fish for 
arrowtooth, Pacific cod, flathead sole, and rex sole. In the BSAI, most 
of the rock sole, flathead sole, and other flatfish fisheries occur on 
the continental shelf in the eastern Bering Sea in water shallower than 
200 m. Some effort follows the contour of the shelf to the northwest 
and extends as far north as Zhemchug Canyon. Very few rock sole, 
flathead sole, and other flatfish are taken in the Aleutian Islands due 
to the limited shallow water areas present.

Bering Sea/Aleutian Islands Pollock Trawl

    In 2009, 117 vessels targeted pollock in the BSAI management area. 
The pattern of the modern pollock fishery in the BSAI is to focus on a 
winter, spawning-aggregation fishery. The A season fishery is January 
20 through June 10. Fishing in this season lasts about 8-10 weeks 
depending on the catch rates. The B season is June 10 through November 
1. Fishing in the B season is typically September through October and 
has been conducted to a greater extent west of 170[deg] west long. 
compared to the A season fishing location in the southern Bering Sea. 
Directed fishing is closed for pollock in all areas from November 1 to 
January 20. Fishing is also closed around designated rookeries and 
haulouts out to 20 nm and within Steller sea lion foraging areas in the 
BSAI. The Bering Sea pollock total allowable catch (TAC) is allocated 
40 percent to the A season and 60 percent to the B season. No more than 
28 percent of the annual directed fishing allowance for pollock can be 
taken inside the Sea Lion Conservation Area in the southern Bering Sea 
before April 1.

Bering Sea/Aleutian Islands Pacific Cod Longline

    In 2009, 55 vessels targeted Pacific cod using hook-and-line gear. 
Hook-and-line harvested Pacific cod are mostly taken along the slope of 
the continental shelf break and along the Aleutian Islands. Harvest is 
seasonally apportioned to A and B seasons for vessels greater than 60 
feet length overall. The A season is January 1 through June 10 and the 
B season is June 10 through December 31. The annual TAC is apportioned 
60 percent to the A season and 40 percent to the B season.

Bering Sea Sablefish Pot

    Sablefish are harvested in relatively deep water along the 
continental slope (100-1,000 m) and along the Aleutian Islands. From 
1996 to 2007, directed fisheries for sablefish have only been open to 
vessels using hook-and-line and pot gear in the BSAI. In 1995, 
sablefish

[[Page 68770]]

(as well as Pacific halibut) became a closed fishery for fixed gear 
based on historical participation. An individual fishing quota (IFQ) 
program was implemented, which assigns quota shares on an annual basis 
to authorized fishermen (50 CFR 679(d)). The directed sablefish fishery 
is open only to IFQ shareholders who use fixed gear (hook-and-line or 
pot gear) and starting in 2008 trawl catcher processors in the 
Amendment 80 cooperative. In 2009, 10 pot catcher vessels were active 
in this fishery.

Negligible Impact Determinations

Humpback Whale, Central North Pacific Stock

    A NID for the CNP humpback whale was issued recently (75 FR 29984, 
May 28, 2010). That analysis included incidental taking by commercial 
fisheries in both Alaska and Hawaii waters. At the time, permits were 
issued to Hawaii-based fisheries but not to Alaska fisheries. NMFS has 
reviewed new information available since it issued the NID and confirms 
the NID for CNP humpback whales.
    The current CNP humpback NID estimated mortality and serious injury 
of CNP humpback whales incidental to commercial fishing operations in 
HI and AK totaled 5.4 whales per year, which is 26.5 percent of the 
stock's PBR level. NMFS concluded that incidental mortality and serious 
injury at this total rate will have a negligible impact on CNP humpback 
whales. The time frame for the data used in that analysis was the five-
year period from 2003 through 2007, pending availability of recent 
data. More recent information provided in the dSAR (Allen and Angliss, 
2010) for the CNP humpback whale now estimates the PBR = 61.2 animals 
based on updated population assessment information and an increase of 
the Recovery Factor (RF) used to calculate PBR to 0.3. The dSAR 
provides a revised estimate for mortality and serious injury of CNP 
humpback whales incidental to commercial fishing operations in HI and 
AK at 3.8 whales per year, which is 6.2 percent of the stock's PBR 
level. Accordingly, NMFS reiterates the conclusion reached by the CNP 
humpback NID: Incidental mortality and serious injury due to commercial 
fisheries will have a negligible impact on CNP humpback whales based on 
the best scientific information for the 5-year period from 2003 through 
2007, with inclusion, where available, of more recent data.

Humpback Whale, Western North Pacific Stock

    NMFS has evaluated the best available information in assessing the 
interactions between ESA-listed WNP humpback whales and Alaska 
fisheries (including observer data), other fisheries (using primarily 
stranding and sightings data), and other sources of human-caused 
serious injury and mortality, to determine whether the incidental 
mortality and serious injury from all commercial fisheries will have a 
negligible impact on the stock. Allen and Angliss (2010) use an annual 
rate of increase of 7 percent for this stock and note this rate is 
considered conservative for the stock. One humpback whale mortality, 
reported in the Bering Sea sablefish pot fishery during the 2002-2006 
period, occurred in an area of overlap between the WNP and CNP humpback 
stocks. Because of the uncertainty of stock assignment of that take, 
NMFS evaluated the potential impacts of this mortality on each of the 
possible source stocks. If this mortality removed an individual from 
the WNP stock, the mean annual mortality and serious injury rate for 
this stock attributable to commercial fisheries is 0.2 whales per year 
(Table 3 in the accompanying NID). NMFS stranding data contain no 
reports of fisheries-related WNP humpback whale strandings or 
entanglements; no mortalities or serious injuries have been recorded 
due to ship strikes. Thus, the estimated annual total human-caused 
injury rate for the WNP stock of humpback whales in the U.S. Exclusive 
Economic Zone (EEZ) for 2002-2006 is 0.2 whales per year. The PBR for 
this stock is 2.0 animals per year. NMFS regulations to classify 
fisheries in the annual LOF state that where total serious injury and 
mortality across all fisheries are equal to or less than 10 percent of 
a stock's PBR, all fisheries interacting with this stock would be 
placed in Category III. NMFS intends to propose changing fishery to 
Category III for the 2012 LOF, based on the current level of total 
serious injury and mortality from this stock (equal to 10 percent of 
the stock's PBR) and no takes of other marine mammals that would place 
it in Category II.
    Accordingly, total human-caused mortality and serious injury are 
below the PBR for this stock. Because, as described in the accompanying 
NID, the stock is stable or increasing and annual human-caused 
mortality and serious injury are equal to 10 percent of PBR, NID 
Criterion (3) is the appropriate criterion for consideration. Under NID 
Criterion (3) fishery-related mortality and serious injury would be 
considered negligible if such mortality and serious injury, in 
combination with other human sources of mortality, do not exceed PBR, 
subject to individual review and certainty of data. The NID Criterion 
(3) is satisfied in determining that mortality and serious injuries of 
the WNP humpback stock incidental to commercial fishing would have a 
negligible impact on the WNP humpback whale stock. This determination 
is supported by review of mortality and serious injury incidental to 
U.S. commercial fishing, stable or increasing growth rate of the stock, 
limited potential for increases in serious injury and mortality due to 
the relevant fisheries, the fact that total human-caused mortality and 
serious injury is below the estimated PBR and is not expected to delay 
recovery of the stock by more than 10 percent more than recovery time 
if these removals did not occur. Additional information is available in 
the draft NID.

Fin Whale, Northeast Pacific Stock

    NMFS evaluated the best available information in assessing the 
interactions between ESA-listed NEP fin whales and Alaska fisheries 
(including observer data), other fisheries (using primarily stranding 
and sightings data), and other sources of human-caused serious injury 
and mortality, in order to determine whether the incidental mortality 
and serious injury from all commercial fisheries will have a negligible 
impact on the stock. Allen and Angliss (2010) reported an annual rate 
of increase of 4.8 percent and a PBR of 11.4 for this stock. Mortality 
of one NEP fin whale was reported in the Bering Sea/Aleutian Islands 
pollock trawl fishery during the 2002-2006 period, and the mean annual 
mortality and serious injury rate incidental to commercial fisheries is 
0.23 whales per year (Table 10 in the accompanying NID). NMFS stranding 
data contain no reports of fisheries-related NEP fin whale strandings 
or entanglements in the EEZ offshore of Alaska. Based on the one 
mortality reported and investigated during 2002-2006, the minimum mean 
annual mortality/serious injury from ship strikes is 0.20 fin whales 
per year in Alaska. The estimated minimum annual total human-caused 
mortality and serious injury rate for the NEP stock of fin whales in 
the U.S. EEZ for 2002-2006 is 0.43 whales per year. Accordingly, total 
human-caused mortality and serious injury is below 10 percent of PBR 
(1.14) for this stock, and evaluation by NID Criterion (1) applies. 
Because all total human-related serious injuries and mortalities are 
less than 0.1

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PBR, NMFS has determined that mortality and serious injury incidental 
to commercial fisheries will have a negligible impact on the NEP fin 
whale stock. Additional information is available in the accompanying 
draft NID.

Sperm Whale, North Pacific Stock

    NMFS has not conducted a complete survey for sperm whales in waters 
off Alaska, and the abundance of the stock is unknown; therefore, a PBR 
for this stock is not available. Allen and Angliss (2010) noted that 
although key elements in understanding the biology and status of the 
population are currently unavailable, current levels of human-caused 
mortality and serious injury seem minimal for this stock. Criterion (1) 
in the 1999 guidelines indicates that total human-caused mortality and 
serious injury of the stock that is less than 10 percent of the stock's 
PBR would have a negligible impact on the affected stock. Allen and 
Angliss (2010) estimate that the Gulf of Alaska groundfish fishery 
takes (by serious injury and mortality) an annual mean of 3.5 sperm 
whales. No other mortality or serious injury of sperm whales is 
reported or observed incidental to commercial fisheries in Alaska. No 
other sources of human-caused mortality and serious injury of sperm 
whales are reported in Alaska. The draft 2010 Pacific SAR for sperm 
whales in California, Oregon and Washington reports an annual rate of 
0.2 human-caused deaths of sperm whales per year. Therefore, human-
cause mortality and serious injury of sperm whales in the North Pacific 
stock may be estimated as 3.7.
    The formula for calculating PBR of North Pacific sperm whales can 
be re-arranged to estimate the minimum number of sperm whales that 
would be required for 3.7 to be 10 percent or less of the stock's PBR. 
Rearranging the formula and solving for the minimum abundance estimate 
results in a minimum abundance of 18,500 sperm whales. Citing multiple 
sources, the draft BiOp (NMFS, 2010) states that practical working 
estimates of sperm whale abundance for the entire North Pacific range 
from 100,000 to 200,000 and that the number of sperm whales in the 
eastern North Pacific has been estimated to be 39,200.
    The best available information (as reported in the draft BiOp and 
Allen and Angliss, 2010) indicates that there are sufficient sperm 
whales in the eastern North Pacific Ocean so that human-caused 
mortality and serious injury are less than 10 percent of a PBR for 
sperm whales in the eastern North Pacific Ocean. Accordingly, the 
mortality and serious injury of North Pacific sperm whales incidental 
to commercial fishing would not cause more than a 10 percent delay in 
the time for the stock to recover. Therefore, NMFS has determined that 
mortality and serious injury incidental to commercial fishing will have 
a negligible impact on the North Pacific stock of sperm whales.

Steller Sea Lion, Western U.S. Stock

    NMFS has evaluated the best available information to assess 
population status and trend and to evaluate the effect of interactions 
between Western U.S. stock of Steller sea lions and commercial 
fisheries in Alaska (including observer data), other fisheries (based 
on the scientific literature), and other sources of human-caused 
serious injury and mortality (surveys, anecdotal reports, and stranding 
and sightings data), to determine whether the incidental mortality and 
serious injury from all commercial fisheries will have a negligible 
impact on the stock. Recent exhaustive reviews of population status and 
trend have been completed by NMFS as part of the draft BiOp on the 
Alaska groundfish fisheries (NMFS 2010) and the stock assessment 
reports (SARs; Allen and Angliss 2010). Although the stock continues to 
decrease in the Western and Central Aleutians, it has, since 2004, been 
increasing in the Eastern Aleutians. The recent trend in the Gulf of 
Alaska has been one of short-term fluctuation in the central and 
western portions with a possible increase in the eastern portion likely 
related to a seasonal migration of individuals from the Eastern U.S 
stock of Steller sea lions. The draft BiOp indicates that the overall 
population of the Western U.S. stock of Steller sea lions is stable and 
may be increasing at an annual rate of 1.5 percent (not statistically 
significant) (NMFS 2010).
    The estimated minimum mean mortality and serious injury rate 
incidental to commercial fisheries over the 2002-2006 period is 26.2 
Western U.S. stock Steller sea lions per year (Table 5 in the 
accompanying NID); 0.25 for the Bering Sea/Aleutian Islands Atka 
mackerel trawl, 3.01 for the Bering Sea/Aleutian Islands flatfish 
trawl, 0.85 for the Bering Sea/Aleutian Islands Pacific cod trawl, 3.83 
for the Bering Sea/Aleutian Islands pollock trawl, 1.33 for the Gulf of 
Alaska pollock trawl, 1.98 for the Bering Sea/Aleutian Islands Pacific 
cod longline and 14.5 in the Prince William Sound salmon drift gillnet. 
The total is greater than 10 percent of PBR (25.4 animals) and less 
than this stock's PBR (254 animals). The mean annual Alaska native 
subsistence take from this stock is estimated to be 197 Western U.S. 
stock Steller sea lions per year. NMFS calculates there is an average 
of 0.6 Steller sea lion mortalities per year due to permitted research 
activities. Based on available data, the estimated total human-caused 
mortality and serious injury (223.8) are less than the PBR (254) for 
this stock. Data available for estimating human caused mortality and 
serious injury in commercial fisheries for this permit are largely 
based on extensive and ongoing fisheries observer programs designed to 
address those fisheries known or believed most likely to interact with 
this stock. In some cases mortality data include opportunistic reports 
(e.g., strandings, subsistence harvest) or old observations (e.g., 
observation of the PWS drift gillnet salmon fishery in the early 
1990s).
    Because fishery-related mortality and serious injury slightly 
exceed 10 percent of PBR, the stock is stable or increasing, and total 
annual human-caused mortality and serious injury are less than PBR, NID 
Criterion (3) is the appropriate criterion for consideration. The NID 
Criterion 3 is satisfied in determining that mortality and serious 
injuries of Western U.S. stock Steller sea lions incidental to 
commercial fishing will have a negligible impact on the stock because 
population growth is stable or increasing, the fishery-related 
mortalities and serious injuries (26.2) are less than PBR (254). This 
determination is supported by review of mortality and serious injury 
incidental to U.S. commercial fishing and other human related mortality 
and serious injury, a stable or increasing population trend, limited 
potential for increases in serious injury and mortality due to the 
relevant fisheries, the fact that total human-caused mortality and 
serious injury is below the estimated PBR and are not expected to delay 
recovery of the stock by more than 10 percent more than recovery time 
if these removals did not occur. Additional information is available in 
the draft NID.

Steller Sea Lion, Eastern U.S. Stock

    NMFS evaluated the best available information to assess population 
status and trend and in evaluating the effect of interactions between 
the ESA-listed Eastern U.S. stock of Steller sea lions and commercial 
fisheries in Alaska (including observer data), other fisheries (based 
on the scientific literature), and other sources of human-caused 
serious injury and mortality (surveys, reports, and stranding and 
sightings data), to determine whether the incidental

[[Page 68772]]

mortality and serious injury from all commercial fisheries will have a 
negligible impact on the stock. Recent reviews of population status and 
trends have been completed by NMFS as part of the (draft) BiOp on the 
Alaska groundfish fisheries (NMFS, 2010) and the SARs (Allen and 
Angliss, 2010). These reviews indicate the stock is increasing at 
minimum of 3.1 per cent per year. The minimum estimated mortality and 
serious injury rate incidental to commercial fisheries (both U.S. and 
Canadian) is 25.6 Eastern U.S. stock Steller sea lions per year, 
(Tables 8 and 9 in the accompanying NID); 0.8 for the WA/OR/CA 
groundfish trawl and 24.8 in the Alaska salmon troll fishery. The total 
estimated annual mortality due to commercial fishing is less than 10 
percent of this stock's PBR (2,378 animals).
    The mean annual Alaska native subsistence take from this stock is 
estimated to be 11.9 Steller sea lions per year. NMFS calculates there 
is an average of 0.8 mortalities per year due to illegal shooting of 
Steller sea lions from the Eastern U.S. stock, an average of 0.6 
``other non-fishery human-related'' mortalities in Oregon and 
Washington, and an average of 1.8 Eastern U.S. stock of Steller sea 
lion mortalities per year due to permitted research activities. Based 
on available data, the estimated total human-caused mortality and 
serious injury (40.7) are less than 10 percent of the stock's PBR 
(237.8). Data available for estimating human-caused mortality and 
serious injury in commercial fisheries are largely based on both 
historic and ongoing fisheries observer programs designed to address 
those fisheries known or believed most likely to interact with this 
stock. NMFS is aware that, in some cases, mortality data are based on 
opportunistic reports (e.g. strandings, subsistence harvest) or on 
observations where it is impossible to determine with certainty if the 
mortality and serious injury occurred as a result of the recreational 
or commercial parts of the fishery due to the similarity of the gear 
used in these southeast Alaska salmon troll fisheries.
    Because total human-caused mortality and serious injury is below 10 
percent of PBR for this stock, NID Criterion 1 is satisfied. NMFS has 
determined that the annual mortality and serious injury incidental to 
commercial fisheries will have a negligible impact on the Eastern U.S. 
stock of Steller sea lions. Additional information is available in the 
accompanying draft NID.

Conclusions for Proposed Permit

    Based on the above assessment and as described in the accompanying 
NID, NMFS concludes that the incidental mortality and serious injury 
from commercial fishing will have a negligible impact on the CNP stock 
of humpback whales, the WNP stock of humpback whales, the NEP stock of 
fin whales, the North Pacific stock of sperm whales, the Western U.S. 
stock of Steller sea lions, and the Eastern U.S. stock of Steller sea 
lions. The impacts on the human environment of continuing and modifying 
the Alaska groundfish fisheries, including the taking of threatened and 
endangered species of marine mammals, were analyzed in Alaska 
Groundfish Fisheries Final Supplemental Programmatic Environmental 
Impact Statement (June 2004; http://www.fakr.noaa.gov/sustainablefisheries/seis/), the Biological Assessment of the Alaska 
Groundfish Fisheries and NMFS Managed Endangered Species Act Listed 
Marine Mammals and Sea Turtles (NMFS 2006; http://stellersealions.noaa.gov/sustainablefisheries/sslmc/agency_documents/BA4-6-06.pdf) pursuant to the National Environmental Policy Act (NEPA) 
(42 U.S.C. 4231 et seq.), and in the draft BiOp prepared for the Alaska 
groundfish fisheries (NMFS, 2010) pursuant to the ESA. Issuing the 
proposed permit would have no additional impact to the human 
environment or effects on threatened or endangered species beyond those 
analyzed in these documents. NMFS now reviews the remaining 
requirements to issue a permit to take the subject listed species 
incidental to the Alaska groundfish fisheries.

Recovery Plans

    Recovery Plans for humpback whales and Steller sea lions of the 
subject listed species have been completed. Recovery plans for fin and 
sperm whales have been drafted and are being completed. These draft and 
final recovery plans are available on the Internet (see ADDRESSES). 
Accordingly, the requirement to have recovery plans in place or being 
developed is satisfied.

Vessel Registration

    MMPA section 118(c)(5)(A) provides that registration of vessels in 
fisheries should, after appropriate consultations, be integrated and 
coordinated to the maximum extent feasible with existing fisher 
licenses, registrations, and related programs. Participants in the 
Alaska groundfish fisheries are required to hold a permit under 50 CFR 
665.21. The MMPA registration program has been integrated in this 
permitting system for the Alaska-based groundfish fisheries. 
Accordingly, vessels in the fisheries are registered in accordance with 
MMPA section 118.

Monitoring Program

    As noted above, Federally-permitted commercial fisheries in Alaska 
have been observed since the early 1990s. Levels of observer coverage 
vary over years but are adequate to produce reliable estimates of 
mortality and serious injury of listed species (e.g., during the 2002-
2006 period, coverage ranged from 58.4-68.3 percent in the Bering Sea/
Aleutian Islands flatfish trawl, 73.0-82.2 percent in the Bering Sea/
Aleutian Islands pollock trawl, 23.8- 29.6 percent for the Bering Sea/
Aleutian Islands Pacific cod longline, and 21.7- 40.6 percent in the 
Alaska Bering Sea sablefish pot fishery). Accordingly, as required by 
MMPA section 118, a monitoring program is in place.

Take Reduction Plans (TRP)

    Subject to available funding, MMPA section 118 requires a TRP in 
cases where a strategic stock interacts with a Category I or II 
fishery. The stocks considered for this permit are designated as 
strategic stocks under the MMPA because they are listed as threatened 
or endangered under the ESA. These strategic stocks interact with the 
Category II fisheries described above, and no TRPs have been developed 
for them. The short- and long-term goals of a TRP are to reduce 
mortality and serious injury of marine mammals incidental to commercial 
fishing to levels below PBR and to a zero mortality rate goal 
(indicated by meeting the threshold for placement in the annual LOF 
Category III), respectively. However, the obligations to develop and 
implement a TRP are subject to the availability of funding. MMPA 
section 118(f)(3) (16 U.S.C. 1387(f)(3)) contains specific priorities 
for developing TRPs.
    NMFS has insufficient funding available to simultaneously develop 
and implement TRPs for all stocks that interact with Category I or 
Category II fisheries. Most recently in March 2009, NMFS considered 
multiple quantitative and qualitative factors to identify its 
priorities for establishing take reduction teams (TRTs) and collecting 
data. As provided in MMPA section 118(f)(6)(A) and (f)(7), NMFS used 
the most recent SARs and LOF as the basis to determine its priorities 
for establishing TRTs and developing TRPs. Through this process, NMFS 
evaluated the WNP and CNP stocks of humpback whale, the North Pacific 
stock of sperm whales, and the Western U.S. stock of Steller sea lions 
as ``low'' priorities for establishing TRTs,

[[Page 68773]]

based on population trends of each stock and mortality and serious 
injury levels incidental to commercial fisheries that are below the 
stocks' PBRs. Accordingly, given these factors and NMFS' prioritization 
process, TRPs will be deferred under section 118 as other stocks have a 
higher priority for any available funding for establishing new TRPs.
    Mortality and serious injury of Steller sea lions, Eastern U.S. 
stock, and NEP fin whales incidental to commercial fisheries are at 
insignificant levels, approaching a zero mortality and serious injury 
rate (Allen and Angliss, 2010). MMPA section 118(b)(2) states that 
fisheries maintaining such mortality and serious injury levels are not 
required to further reduce their mortality and serious injury rates. 
Because the goals of TRPs are to reduce mortality and serious injury of 
marine mammals incidental to commercial fishing operations, no TRPs are 
required for either of these stocks.
    As noted in the summary above, all of the requirements to issue a 
permit to the following Federally-authorized and State-parallel 
Category II groundfish fisheries have been satisfied: the AK Bering 
Sea/Aleutian Islands flatfish trawl, AK Bering Sea/Aleutian Islands 
pollock trawl, AK Bering Sea sablefish pot, and AK Bering Sea/Aleutian 
Islands Pacific cod longline fisheries. Accordingly, NMFS proposes to 
issue a permit to participants in these Category II fisheries for the 
taking of CNP humpback whales, WNP humpback whales, NEP fin whales, 
North Pacific sperm whales, Steller sea lions (Western U.S. stock), and 
the Steller sea lions (Eastern U.S. stock) incidental to the fisheries' 
operations. As noted under MMPA section 101(a)(5)(E)(ii), no permit is 
required for vessels in Category III fishery. For incidental taking of 
marine mammals to be authorized in Category III fisheries, any injuries 
or mortalities must be reported to NMFS. NMFS solicits public comments 
on the proposed permit and the preliminary determinations supporting 
the permit.

References

    Allen, B.M., and R.P. Angliss (eds.). 2010. (Draft) Alaska Marine 
Mammal Stock Assessments, 2010. NMFS, National Marine Mammal 
Laboratory, Seattle WA.
    NMFS. 2010. Draft Biological Opinion for Authorization of 
Groundfish Fisheries under the Fishery Management Plan for Groundfish 
of the Bering Sea and Aleutian Island Management Area, Authorization of 
Groundfish Fisheries under the Fishery Management Plan for Groundfish 
of the Gulf of Alaska, and the State of Alaska Parallel Groundfish 
Fisheries. NMFS, Alaska Region, Juneau, AK. (http://stellersealions.noaa.gov/protectedresources/stellers/esa/biop/draft/0810.htm.)

    Dated: November 4, 2010.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2010-28280 Filed 11-8-10; 8:45 am]
BILLING CODE 3510-22-P