[Federal Register Volume 82, Number 6 (Tuesday, January 10, 2017)]
[Notices]
[Pages 2954-2960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00265]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XE909
Taking of Threatened or Endangered Marine Mammals Incidental to
Commercial Fishing Operations; Proposed Issuance of Permit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), are
proposing to issue a permit for a period of three years to authorize
the incidental, but not intentional, take of two stocks of marine
mammals listed as threatened or endangered under the Endangered Species
Act (ESA), under the Marine Mammal Protection Act (MMPA), by the
California (CA) thresher shark/swordfish drift gillnet fishery (>14
inch mesh) and the Washington (WA)/Oregon (OR)/CA sablefish pot
fishery. In accordance with the MMPA, NMFS issues this permit provided
that it can make the determination that: The incidental take will have
a negligible impact on the affected 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 thresher shark/swordfish drift
[[Page 2955]]
gillnet fishery (>14 inch mesh) and the WA/OR/CA sablefish pot
fisheries are registered. We have made a preliminary determination that
incidental taking from commercial fishing will have a negligible impact
on the ESA-listed humpback whale (CA/OR/WA stock) and sperm whale (CA/
OR/WA stock). Recovery plans have been completed for humpback and sperm
whales. We solicit public comments on the draft negligible impact
determination (NID) and on the proposal to issue a permit to vessels
that operate in these fisheries for the taking of affected endangered
stocks of marine mammals.
DATES: Comments on this action and supporting documents must be
received by February 9, 2017.
ADDRESSES: You may submit comments on this document and the draft
negligible impact determination, which are available on the Internet at
the following address: http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/fisheries_interactions.html. Recovery
plans for these two species are available on the Internet at the
following address: http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals.
You may submit comments on this document or the draft negligible
impact determination, identified by NOAA-NMFS-2016-0129, by either of
the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0129, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments.
Mail: Send written comments to: Chris Yates, Assistant
Regional Administrator, Protected Resources Division, West Coast
Region, 501 W. Ocean Blvd., Suite 4200; Long Beach, CA 90802. Comments
may also be faxed to (562) 980-4027. Include the identifier ``NOAA-
NMFS-2016-0129'' in the comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Christina Fahy, NMFS West Coast
Region, (562) 980-4023 or [email protected]; or Shannon
Bettridge, NMFS Office of Protected Resources, (301) 427-8402 or
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(E) of the MMPA, 16 U.S.C. 1361 et seq., states
that NMFS, as delegated by the Secretary of Commerce, shall for a
period of up to three years allow the incidental taking of marine
mammal species listed under the ESA, 16 U.S.C. 1531 et seq., by persons
using vessels of the United States and those vessels which have valid
fishing permits issued by the Secretary in accordance with section
204(b) of the Magnuson-Stevens Fishery Conservation and Management Act,
16 U.S.C. 1824(b), while engaging in commercial fishing operations, if
NMFS makes certain determinations. NMFS must determine, after notice
and opportunity for public comment, that: (1) Incidental mortality and
serious injury (M/SI) 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.
We propose to issue a permit under MMPA section 101(a)(5)(E) to
vessels registered in the CA thresher shark/swordfish drift gillnet
fishery (>14 inch mesh) to incidentally take individuals from two
stocks of endangered marine mammals: The CA/OR/WA stock of humpback
whales (Megaptera novaeangliae) and the CA/OR/WA stock of sperm whales
(Physeter macrocephalus); and to vessels registered in WA/OR/CA
sablefish pot fishery to incidentally take individuals from the CA/OR/
WA stock of humpback whales. A history of MMPA section 101(a)(5)(E)
permits related to these stocks was included in previous notices for
other permits to take threatened or endangered marine mammals
incidental to commercial fishing (e.g., 72 FR 60814, October 26, 2007;
78 FR 54553, September 4, 2013) and is not repeated here. The data for
considering these authorizations were reviewed coincident with the 2016
MMPA List of Fisheries (LOF; 81 FR 20550, April 8, 2016), the final
2015 U.S. Pacific Marine Mammal Stock Assessment Report (SAR) (Carretta
et al. 2016), Carretta and Moore (2014), Moore and Barlow (2014), the
Fishery Management Plan (FMP) for U.S. West Coast Fisheries for Highly
Migratory Species (HMS), recovery plans for these species (available on
the Internet at: http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals), the best available scientific information and
available data, and other relevant sources.
Based on observer data and marine mammal injury reporting forms,
vessels operating in the Category I CA thresher shark/swordfish drift
gillnet fishery (>14 inch mesh) and the Category II WA/OR/CA sablefish
pot fishery are the two Federally-managed Category I and II fisheries
that operate in the ranges of affected stocks, namely the CA/OR/WA
stocks of humpback whale and sperm whale, and are currently considered
for authorization. A brief description of these fisheries can be found
below. The CA thresher shark/swordfish drift gillnet fishery (>14 inch
mesh), is the only Federally-managed Category I fishery operating off
the coast of California. The WA/OR/CA sablefish pot fishery is the only
Federally-managed Category II fishery operating off the coasts of
California, Oregon, and Washington. All other Category II fisheries
that may interact with the marine mammal stocks observed off the coasts
of California, Oregon, and Washington are state-managed and are not
considered for authorization under this permit; however, M/SI related
to these fisheries and all other human sources was evaluated in the
draft NID. 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 any mortality or injury of marine mammals incidental
to their operations.
Basis for Determining Negligible Impact
Prior to issuing a permit to take ESA-listed marine mammals
incidental to commercial fishing, NMFS must determine if the M/SI
incidental to commercial fisheries will have a negligible impact on the
affected species or stocks of marine mammals. NMFS satisfies this
requirement through completion of a NID. We clarify that for purposes
of the draft negligible impact analysis, incidental M/SI from
commercial fisheries includes M/SI from entanglement in fishing gear or
ingestion of fishing gear. Indirect effects,
[[Page 2956]]
such as the effects of removing prey from habitat, are not included in
this analysis. A biological opinion prepared under ESA section 7
considers direct and indirect effects of Federal actions (available at
http://www.westcoast.fisheries.noaa.gov/), 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 216.103), and through scientific analysis, peer
review, and public notice developed a quantitative approach for
determining negligible impact. As it applies here, the definition of
``negligible impact'' 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.'' The development of the
approach is outlined in detail in the current draft NID made available
through this notice and was described in previous notices for other
permits to take threatened or endangered marine mammals incidental to
commercial fishing (e.g., 72 FR 60814, October 26, 2007; 78 FR 54553,
September 4, 2013).
Criteria for Determining Negligible Impact
In 1999 NMFS adopted criteria for making NIDs for MMPA 101(a)(5)(E)
permits (64 FR 28800, May 27, 1999). In applying the 1999 criteria to
determine whether M/SI incidental to commercial fisheries will have a
negligible impact on a listed marine mammal stock, Criterion 1 is
whether total human-related M/SI is less than 10 percent of the stock's
potential biological removal level (PBR). If total human-related M/SI
is less than 10 percent of PBR, the analysis would be concluded, and
the impact would be determined to be negligible. If Criterion 1 is not
satisfied, NMFS may use one of the other criteria as appropriate. The
remaining criteria describe alternatives under certain conditions.
Criterion 2 is satisfied if the total human-related M/SI is greater
than PBR, but commercial fisheries-related M/SI is less than 10 percent
of PBR. If Criterion 2 is satisfied, vessels operating in individual
fisheries may be permitted if management measures are being taken to
address non-fisheries-related mortality and serious injury. Criterion 3
is satisfied if total commercial fisheries-related M/SI is greater than
10 percent of PBR and less than PBR, and the population is stable or
increasing. Fisheries may then be permitted subject to individual
review and certainty of data. Criterion 4 stipulates that if the
population abundance of a stock is declining, the threshold level of 10
percent of PBR will continue to be used. Criterion 5 states that if
total commercial fisheries-related M/SI is greater than PBR, permits
may not be issued for that species or stock.
We considered two time frames for this analysis: 5 years (2010-
2014) and 14 years (2001-2014). The first time frame we considered for
both stocks of whales is the most recent five-year period for which
data are available and have been analyzed (here, January 1, 2010
through December 31, 2014) and is typically used for NID analyses. A
five-year time frame in many cases provides enough data to adequately
capture year-to-year variations in take levels, while reflecting
current environmental and fishing conditions, as they may change over
time. However, NMFS' Guidelines for Assessing Marine Mammal Stocks
(GAMMS) suggest that mortality estimates could be averaged over as many
years as necessary to achieve a coefficient of variation of less than
or equal to 0.3.
In addition, Carretta and Moore (2014) recommend pooling longer
time series of data when bycatch is a rare event. For example, pooling
10 years of fishery data resulted in bycatch estimates within 25
percent of the true bycatch rate over 50 percent of the time (i.e.,
estimates were within 25 percent of the true value more often than
not). Key to this approach was that the fishery must have had
sufficiently constant characteristics (e.g., effort, gear, locations)
to support the inference of consistent results across years such as
with the CA thresher shark/swordfish drift gillnet fishery (>=14 inch
mesh). Rare bycatch events typically involve smaller populations paired
with low observer coverage in a fishery. If true bycatch mortality is
low, but near PBR, then estimation bias needs to be reduced to allow
reliable evaluation of the bycatch estimate against a low removal
threshold.
Currently, the humpback whale and the sperm whale stocks are the
only ESA-listed marine mammal species interacting with the CA thresher
shark/swordfish drift gillnet fishery (>=14 inch mesh) that meet the
conditions described in Carretta and Moore (2014): These stocks have
relatively small minimum population estimates and have been recorded as
having been incidentally killed or seriously injured in rare events (in
the CA thresher shark/swordfish drift gillnet fishery (>=14 inch mesh).
The CA/OR/WA stock of humpback whale has also been recorded as having
been rarely incidentally killed or seriously injured in the WA/OR/CA
sablefish pot fishery.
In 2001, a time/area closure of the drift gillnet fishery off
central and northern California/southern Oregon to protect leatherback
sea turtles was implemented through regulations, and resulted in a
decrease in overall fishing effort and a shift in effort to southern
California. Therefore, the post-2000 time period best represents the
current spatial state of the fishery, so we used the 14-year period
post-2000 to calculate mean annual mortality estimate for these two
stocks of whales, based on recommendations contained in the GAMMS and
Carretta and Moore (2014). This time frame also provides a
comprehensive look at the WA/OR/CA sablefish pot fishery, given changes
in oceanographic conditions, fishing practices, and reporting and
stranding records.
A conservative, or precautionary, approach is taken in these
analyses for evaluating the negligible impact of fisheries and other
sources of injury or mortality, such as recreational fisheries and ship
strikes, on these stocks. In certain cases, the maximum estimate of M/
SI was used for the calculations. For example, if a ship strike
occurred, but M/SI was not observed on scene or confirmed by necropsy
of the stranded animal, and if further review of reports and other
sources then confirmed M/SI, it was assumed for purposes of this
analysis, that M/SI occurred. Additionally, M/SI from unknown or
unidentified fisheries was conservatively considered to be from
commercial fisheries. Furthermore, in using two time frames for the
negligible impact analyses (2001-2014 and 2010-2014), we took a
precautionary approach by ensuring that a NID could be made for both
time frames considered.
Negligible Impact Determinations
Below is a summary of our application of the negligible impact
criteria and determination regarding the effects of commercial
fisheries off the U.S. west coast on the CA/OR/WA stocks of humpback
whale and sperm whale.
Criterion 1 Analysis
Criterion 1 would be satisfied if the total human-related M/SI is
less than 10 percent of PBR.
The 5-year (2010-2014) average annual human-related M/SI to the CA/
OR/WA stock of humpback whales is 6.8 or 62.0 percent of the PBR
(11.0). The 14-year (2001-2014) average annual human-related M/SI to
the CA/OR/WA
[[Page 2957]]
stock of humpback whales is 5.1 or 46.4 percent of the PBR. The total
annual human-related M/SI for this stock of humpback whales is not less
than 10 percent of PBR for both time frames considered.
The 5-year (2010-2014) average annual human-related M/SI of the CA/
OR/WA stock of sperm whales is 0.6 or 22.2 percent of the PBR (2.7).
The 14-year (2001-2014) average annual human-related M/SI to the CA/OR/
WA stock of sperm whales from all human sources is 0.9 or 33.3 percent
of the PBR. The total annual human-caused M/SI for this stock of sperm
whales is not less than 10 percent of the PBR for both time frames
considered.
Criterion 1 was not satisfied because the total annual human-
related M/SI for these stocks is not less than 10 percent of PBR for
the time periods considered. As a result, the other criteria must be
examined.
Criterion 2 Analysis
Criterion 2 would be satisfied if total human-related M/SI is
greater than PBR and the total fisheries-related mortality is less than
10 percent of PBR. This criterion was not satisfied because total
human-related M/SI (detailed above) is less than PBR, and total
fisheries-related mortality (detailed below) is greater than 10 percent
of PBR for each stock (both time frames analyzed). As a result, the
other criteria were examined.
Criterion 3 Analysis
Unlike Criteria 1 and 2, which examine total human-related M/SI
relative to PBR, Criterion 3 compares total fisheries-related M/SI to
PBR. Criterion 3 would be satisfied if the total commercial fisheries-
related M/SI (including state and Federal fisheries) is greater than 10
percent of and less than 100 percent of PBR for each stock for the
respective time frame considered, and the populations of these stocks
are considered to be stable or increasing. If the Criterion is met,
vessels may be permitted subject to individual review and certainty of
data.
Criterion 3 was satisfied for the CA/OR/WA humpback whale stock as
the annual average fishery-related M/SI from all commercial fisheries
is greater than 10 percent of and less than 100 percent of PBR, and the
population is increasing (6-7 percent per year). The 5-year (2010-2014)
average annual fishery-related M/SI from all commercial fisheries for
the CA/OR/WA humpback whale stock is estimated at 5.6 or 51.0 percent
of PBR and 4.1 or 37.3 percent of PBR for the 14-year period (2001-
2014), which is between 10 percent and 100 percent of PBR. In addition,
the stock has experienced a positive growth rate (6-7 percent per
year). Accordingly, Criterion 3 is satisfied in determining that M/SI
of the CA/OR/WA humpback whale stock incidental to commercial fishing
would have a negligible impact on the stock.
In 2015, there was a significant increase in reports of entangled
humpback whales off the U.S. west coast, primarily in the state-managed
pot/trap fisheries. In addition, there were two fatal ship strikes of
humpback whales. We evaluated the 2015 preliminary raw entanglement and
ship strike data to understand how future data may impact this type of
analysis. Serious injury determinations for 2015 will be completed in
early 2017. If not all entanglements or ship strikes are determined to
be M/SI, it is possible to conclude there is a negligible impact under
Criterion 3 for both the 15-year and five-year time frames. Based on
past humpback whale injury determinations from 2007 through 2014, 84
percent were determined to be M/SI.
Criterion 3 was satisfied for the CA/OR/WA sperm whale stock as the
total fishery-related M/SI is greater than 10 percent of and less than
100 percent of PBR, and the population is stable. The 5-year (2010-
2014) annual average fishery-related M/SI from all commercial fisheries
for the CA/OR/WA sperm whale stock is estimated at 0.4 or 14.8 percent
of PBR and 0.6 or 22.2 percent of PBR for the 14-year average (2001-
2014), which is between 10 percent and 100 percent of PBR. The
population is considered to be stable.
In 2015, there were no reports of entangled or ship-struck sperm
whales. Therefore, the addition of one more year of data would not
change the conclusion reached in the draft NID.
Accordingly, Criterion 3 is satisfied in determining that M/SI of
the CA/OR/WA sperm whale stock incidental to commercial fishing would
have a negligible impact on the stock.
In conclusion, based on the criteria outlined in 1999 (64 FR
28800), the final 2015 U.S. Pacific SAR (Carretta et al,. 2016),
Carretta and Moore (2014), Moore and Barlow (2014), and the best
available scientific information, available data and other sources,
NMFS has determined that the M/SI incidental to the CA thresher shark/
swordfish drift gillnet fishery (>=14 inch mesh) and the WA/OR/CA
sablefish pot fishery will have a negligible impact on the CA/OR/WA
stock of humpback whales and the CA thresher shark/swordfish drift
gillnet fishery (>=14 inch mesh) will have a negligible impact on the
CA/OR/WA stock of sperm whales. NMFS therefore proposes to issue the
MMPA 101(a)(5)(E) permit. Specifically, NMFS proposes that vessels
operating in these identified commercial fisheries within the range of
the CA/OR/WA humpback and sperm whale stocks may be permitted subject
to individual review of the fishery and the certainty of relevant data,
and provided that the other provisions of section 101(a)(5)(E) are met.
Description of Fisheries
The following is an individual review of the two Federally-
authorized fisheries classified as Category I and II in the 2016 LOF
(81 FR 20550) which are known through observer records, fisher self-
reports, and confirmed entanglement reports to kill or seriously injure
ESA-listed marine mammals incidental to commercial fishing operations.
Detailed descriptions of those fisheries can be found in the NMFS
(2011) Biological Opinion on the operation of the Pacific groundfish
fishery, which includes the WA/OR/CA sablefish pot fishery; the NMFS
(2013) Biological Opinion for the CA thresher shark/swordfish drift
gillnet fishery (>=14 inch mesh); the 2015 SAR (Carretta et al. 2016);
and the draft NID.
California Thresher Shark/Swordfish Drift Gillnet Fishery (>14 Inch
Mesh)
Participants in the CA thresher shark/swordfish drift gillnet
fishery (>=14 inch mesh) are required to have a valid permit issued
annually by the California Department of Fish and Wildlife. In
accordance with MMPA section 118(c), only those vessels participating
in the CA thresher shark/swordfish drift gillnet fishery (>=14 inch
mesh) that have registered with the Marine Mammal Authorization Program
are authorized to take marine mammals incidental to their fishing
operations. Vessels holding this authorization must comply with the
Pacific Offshore Cetacean Take Reduction Plan and implementing
regulations. Any vessel that violates regulations will be subject to
enforcement action. The estimated number of vessels in the fishery is
based upon the number of vessels that indicated intent to participate
in the fishery according to historical reference and may not be an
accurate estimate of the number of vessels actively engaged in fishing
in any given year. The CA thresher shark/swordfish drift gillnet
fishery (=14 inch mesh) is a limited entry program, managed
with gear, seasons, and area closures. The number of vessels
participating in the CA thresher shark/swordfish drift gillnet fishery
(=14 inch mesh) has decreased from 148 permits issued and 98
active vessels in 1998 to 72 permits issued and
[[Page 2958]]
18 active vessels in 2016. Information on the number of active permit
holders was obtained from the ``Status of the U.S. west coast fisheries
for HMS through 2004; Stock Assessment and Fishery Evaluation'' report,
available from the Pacific Fishery Management Council Web site
(www.pcouncil.org).
The fishery targets swordfish and thresher shark. It operates
outside of state waters to about 150 nautical miles (nm) offshore
ranging from the U.S./Mexico border in the south to the Oregon border
in the north, depending on sea surface temperature conditions.
Regulations restrict the fishery to waters outside 200 nm from February
1 through April 30, and outside 75 nm from May 1 through August 14,
while allowing fishing inside 75 nm from August 15 through January 31.
Vessels in this fishery targeting swordfish tend to set on warm ocean
water temperature breaks, which do not appear along the California
coast until late summer. Because of these restrictions, vessels are not
active during February, March, and April, and very little fishing
effort occurs during the months of May, June, and July.
In 2001, a seasonal (15 August-15 November) area closure was
implemented in the CA thresher shark/swordfish drift gillnet fishery
(>=14 inch mesh) north of Point Conception, to protect leatherback
turtles that feed in the area and were observed entangled in previous
fishing seasons. Additional seasonal/area closures in southern
California have been established in the CA thresher shark/swordfish
drift gillnet fishery to protect loggerhead turtles during a forecast
or occurring El Ni[ntilde]o event during the months of June, July and/
or August.
The NMFS West Coast Region has operated an at-sea observer program
in the CA thresher shark/swordfish drift gillnet fishery (>=14 inch
mesh) since July 1990 to the present. The objectives of the NMFS
observer program are to record, among other things, information on non-
target fish species and protected species interactions. NMFS typically
targets 20 percent observer coverage of the annual sets by the CA
thresher shark/swordfish drift gillnet fishery (>=14 inch mesh) fleet,
with close to 100 percent of net retrievals monitored on observed trips
for, among other things, species identification and enumeration.
WA/OR/CA Sablefish Pot Fishery
The WA/OR/CA sablefish pot fishery targets sablefish using
trapezoid, conical, or rectangular steel frame traps, wrapped with >=2
inch nylon webbing. The fishery generally sets gear at depths between
80 and 300 fathoms off the west coast of the U.S. The fishery is
managed under regulations implementing the Pacific Coast Groundfish FMP
developed by the Pacific Fishery Management Council. There are four
distinct segments of the Pacific coast groundfish fishery where
sablefish may be harvested, by some or all of the participants, with
pot gear: Limited entry fixed gear sablefish primary fishery and daily
trip limit fishery; the trawl individual fishing quota (IFQ) fishery
when vessels are ``gear switching'' (allowed since 2011); and the open
access sablefish daily trip limit fishery. Further information about
each of these segments of the groundfish fishery that may harvest
sablefish with pot gear is provided below.
The limited entry fixed gear sablefish primary fishery occurs
between 36[deg] N. latitude (lat.) and the U.S.--Canada border and
requires at least one limited entry permit, with both a fixed gear
endorsement and a sablefish endorsement, be registered to a vessel. The
primary fishery is composed of a three-tier system of cumulative
landing quotas within a restricted season, from April 1 to October 31.
Permits were assigned to a tier based on landing history when the
system originally began in 1998. There are 32 Limited Entry Permits
issued for the sablefish trap fishery on the West Coast. Fishing
outside of the primary season or after fulfillment of tier quota is
allowed, subject to limited entry fixed gear weekly and two-month
cumulative limits. The limited entry permits are currently associated
with vessels spread throughout the Pacific Northwest from Northern
California through Washington, and some vessels registered to limited
entry permits also fish in waters off Alaska. Up to three sablefish-
endorsed permits may be stacked for cumulative landings on one vessel
and may include both trap and longline gear endorsements.
The limited entry fixed gear daily trip limit fishery occurs coast
wide, year-round. Vessels registered to limited entry permits with pot/
trap gear endorsements may harvest sablefish with pot/trap gear year
round, according to the applicable weekly and two-month cumulative
limits, applicable to their time/area. Accounting for stacking of
permits, there were 41 vessels using traps only and five using a
combination of traps and longline to harvest sablefish in 2014.
The vessels participating in the limited entry trawl Shore-based
IFQ Program may choose to harvest their sablefish quota with non-trawl
gear, including pot gear, under provisions of the Program that allow
for an activity called ``gear switching.'' Vessels fishing in the
Shore-based IFQ Program under gear switching provisions are subject to
most of the same requirements as those vessels fishing trawl gear to
harvest their groundfish quota, including 100 percent observer
coverage, fishing on their own individual quota, etc. However,
regulations that apply specifically to non-trawl gears, like gear-
specific area and depth restrictions, apply to vessels gear switching.
The open access fishery is comprised of vessels not registered to
limited entry permits, is available to fishermen year round, and
managed throughout the year with daily, weekly, and two-month trip
limits. NOAA's Northwest Fisheries Science Center estimates 204
fishermen (number of state-issued permits, not reflective of number of
active fishermen), participating in the open access sector in 2014
based on a query, conducted on June 17, 2014 of the NMFS groundfish Web
site (https://www.webapps.nwfsc.noaa.gov/apex_ifq/f?p=112:23).
Participants in the sablefish fishery are required to keep daily
logs of fishing activities. Depending on the area of the coast, fishing
for sablefish with non-trawl gear (e.g. pot gear, etc.) is prohibited
in certain depths by the Groundfish Non-Trawl Rockfish Conservation
Area. Specific depth restrictions vary, and may be modified during the
year, but generally prohibit setting sablefish pots between 30 fathoms
and 100 fathoms (from Washington to central California) and between 60
fathoms and 150 fathoms (southern California). Federal regulations
pertaining to depth-based closures for limited entry fixed gear can be
found in Table 2 (North and South) of 50 Code of Federal Regulations
(CFR) part 660, subpart E, and open access closures can be found in
Table 3, 50 CFR part 660, subpart F. The state management agencies may
close additional areas. For example, south of Point Arguello, near
Santa Barbara, the minimum depth for setting traps targeting sablefish
is 200 fathoms. Multiple traps are connected to a common ground line
made of nylon or nylon blend and \5/16\th or \3/8\th inch wide. Limited
entry permit holders commonly fish 20 to 50 traps per string, as
opposed to open access fishermen who generally fish several smaller
strings; up to eight strings with one to four traps per string, each
with a float line and buoy stick.
Conclusions for Proposed Permit
Based on the individual review of the fisheries and the certainty
of relevant data, and as described in the
[[Page 2959]]
accompanying draft NID, NMFS concludes that the M/SI incidental to the
CA thresher shark/swordfish drift gillnet fishery (=14 inch
mesh) and the WA/OR/CA sablefish pot fishery will have a negligible
impact on the CA/OR/WA stock of humpback whales and the CA thresher
shark/swordfish drift gillnet fishery (>=14 inch mesh) will have a
negligible impact on the CA/OR/WA stock of sperm whales.
The National Environmental Policy Act (NEPA) requires Federal
agencies to evaluate the impacts of alternatives for their actions on
the human environment. The impacts on the human environment of
continuing and modifying the CA thresher shark/swordfish drift gillnet
fishery (>=14 inch mesh) (as part of the HMS fisheries) and the WA/OR/
CA sablefish pot fishery (as part of the West Coast groundfish
fisheries), including the taking of threatened and endangered species
of marine mammals, were analyzed in: the Pacific Fishery Management
Council Highly Migratory Species FMP final environmental impact
statement (August 2003); the Pacific Fishery Management Council
Proposed Harvest Specifications and Management Measures for the 2013-
2014 Pacific Coast Groundfish Fishery and Amendment 21-2 to the Pacific
Coast FMP (September 2012); Risk assessment of U.S. West Coast
groundfish fisheries to threatened and endangered marine species
(NWFSC, 2012); and in the Final Biological Opinion prepared for the
West Coast groundfish fisheries (NMFS, 2011) and the Biological Opinion
for the CA thresher shark/swordfish drift gillnet fishery (>=14 inch
mesh) (NMFS, 2013), pursuant to the ESA. Because this proposed permit
would not modify any fishery operation and the effects of the fishery
operations have been evaluated fully in accordance with NEPA, no
additional NEPA analysis is required for this permit. 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 CA thresher shark/swordfish drift gillnet fishery
(>=14 inch mesh) and WA/OR/CA sablefish pot fisheries.
Recovery Plans
Recovery Plans for humpback whales and sperm whales have been
completed (see http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals).
Accordingly, the requirement to have recovery plans in place or being
developed is satisfied.
Vessel Registration
MMPA section 118(c) requires that vessels participating in Category
I and II fisheries register to obtain an authorization to take marine
mammals incidental to fishing activities. Further, 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 CA thresher shark/swordfish drift
gillnet fishery (>=14 inch mesh) and WA/OR/CA sablefish pot fisheries
provide the information needed by NMFS to register their vessels for
the MMPA incidental take authorization through the Federal limited
entry permit process. Therefore, vessel registration for an MMPA
authorization is integrated through those programs in accordance with
MMPA section 118.
Monitoring Program
The CA thresher shark/swordfish drift gillnet fishery (>=14 inch
mesh) has been observed by NMFS since 1990. Levels of observer coverage
vary over years but are adequate to produce reliable estimates of M/SI
of listed species (e.g., from 2001-2014, coverage ranged from
approximately 12.0 to 37 percent). As part of the West Coast groundfish
fishery and Magnuson-Stevens Fishery Conservation and Management Act
objectives, the WA/OR/CA limited entry sablefish pot fishery, as
managed under the groundfish FMP, has been observed between 13 percent
and 57 percent between 2002 and 2014. Accordingly, as required by MMPA
section 118, a monitoring program is in place for both fisheries.
Take Reduction Plans
Subject to available funding, MMPA section 118 requires the
development and implementation of a Take Reduction Plan (TRP) in cases
where a strategic stock interacts with a Category I or II fishery. The
two stocks considered for this permit are designated as strategic
stocks under the MMPA because they are listed as endangered under the
ESA (MMPA section 3(19)(C)).
In 1996, NMFS convened a take reduction team (TRT) to develop a TRP
to address the incidental taking of several strategic marine mammal
stocks, including CA/OR/WA stocks of sperm whales and humpback whales,
in the CA thresher shark/swordfish drift gillnet fishery (>=14 inch
mesh). The Pacific Offshore Cetacean TRP was implemented through
regulations in October, 1997 (62 FR 51813) and has been in place ever
since. Although a TRP is in place for the gillnet fishery, there is
currently not one in place for the sablefish pot fishery.
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, defined by NMFS as
10 percent of PBR. MMPA section 118(b)(2) states that fisheries
maintaining such M/SI levels are not required to further reduce their
M/SI rates. 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 strategic stocks that interact with Category I
or Category II fisheries. As provided in MMPA section 118(f)(6)(A) and
(f)(7), NMFS uses the most recent SAR and LOF as the basis to determine
its priorities for establishing TRTs and developing TRPs. Through this
process for developing TRTs, in 2015, NMFS evaluated the CA/OR/WA stock
of humpback whales and the WA/OR/CA sablefish pot fishery and
identified it as a lower priority compared to other marine mammal
stocks and fisheries for establishing TRTs, based on population trends
of the stock and M/SI levels incidental to that commercial fishery. In
addition, NMFS continues to collect data to categorize fixed gear
fisheries and assess their risk to large whales off the U.S. west
coast. Accordingly, given these factors and NMFS' priorities,
implementation of a TRP for the WA/OR/CA sablefish pot trap fishery and
other similar Category II fisheries will be currently deferred under
section 118 as other stocks/fisheries are a higher priority for any
available funding for establishing new TRPs.
As noted in the summary above, all of the requirements to issue a
permit to the following Federally-authorized fisheries have been
satisfied: the CA thresher shark/swordfish drift gillnet fishery (>=14
inch mesh) and WA/OR/CA sablefish pot fishery. Accordingly, NMFS
proposes to issue a permit to participants in these Category I and II
fisheries for the taking of CA/OR/WA humpback whales and CA/OR/WA sperm
whales incidental to the fisheries' operations. As noted under MMPA
section 101(a)(5)(E)(ii), no permit is required for vessels in Category
III fisheries. For incidental taking of
[[Page 2960]]
marine mammals to be authorized in Category III fisheries, any
mortality or serious injury must be reported to NMFS. NMFS solicits
public comments on the proposed permit and the preliminary
determinations supporting the permit.
Dated: January 4, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2017-00265 Filed 1-9-17; 8:45 am]
BILLING CODE 3510-22-P