Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Proposed Issuance of Permit

<NOTICE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <DEPDOC>[RTID 0648-XE634]</DEPDOC> <SUBJECT>Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Proposed Issuance of Permit</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Notice; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS is proposing to issue a permit to authorize the incidental, but not intentional, take of specific Endangered Species Act (ESA)-listed marine mammal species or stocks under the Marine Mammal Protection Act (MMPA), in the Category II California (CA) thresher shark/swordfish drift gillnet (≥14 inch (in) mesh) fishery and the corresponding high seas component of the fishery as defined on the MMPA List of Fisheries as the Pacific highly migratory species drift gillnet fishery (hereinafter, collectively referred to as the CA thresher shark/swordfish drift gillnet (≥14 in mesh)/Pacific highly migratory species drift gillnet fishery. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> Comments on this action and supporting documents must be received by April 14, 2025. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments on the proposed permit and the preliminary determination supporting the permit, identified by NOAA-NMFS-2025-0007, through the Federal e-Rulemaking Portal: 1. Go to <E T="03">https://www.regulations.gov</E> and enter NOAA-NMFS-2025-0007 in the Search box. 2. Click the “Comment” icon, and complete the required fields. 3. Enter or attach your comments. <E T="03">Instructions:</E> 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 <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, <E T="03">etc.</E> ), 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). The preliminary determination supporting the permit is available on the internet at <E T="03">https://www.regulations.gov/docket/NOAA-NMFS</E> -2025--0007. Other supporting information is available on the internet including: recovery plans for the ESA-listed marine mammal species, <E T="03">https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act;</E> 2024 MMPA List of Fisheries (LOF), <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables;</E> the most recent Marine Mammal Stock Assessment Reports (SAR) by region, <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region,</E> and stock, <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock;</E> and Take Reduction Teams (TRT) and Plans, <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Dan Lawson, West Coast Region, (206) 526-4740, <E T="03">Dan.Lawson@noaa.gov,</E> or Jaclyn Taylor, NMFS Office of Protected Resources, (301) 427-8402, <E T="03">Jaclyn.Taylor@noaa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> The MMPA requires NMFS to authorize the incidental take of ESA-listed marine mammals in commercial fisheries provided it can make the following determinations: (1) the incidental mortality and serious injury (M/SI) from commercial fisheries will have a negligible impact on the affected species or stocks; (2) a recovery plan for all affected species or stocks of threatened or endangered marine mammals has been developed or is being developed pursuant to the ESA; and (3) where required under MMPA section 118, a take reduction plan (TRP) has been developed or is being developed, a monitoring program is established, and vessels participating in the fishery are registered. We have made a preliminary determination that the Category II CA thresher shark/swordfish drift gillnet (≥14 in mesh)/Pacific highly migratory species drift gillnet fishery meets these three requirements and propose to issue a permit to the fishery to authorize the incidental take of ESA-listed marine mammal species or stocks (Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA stocks of humpback whale; CA/OR/WA stock of sperm whale) under the MMPA for a period of 3 years. We solicit public comments on the proposed issuance of the permit and the underlying preliminary determination. <HD SOURCE="HD1">Background</HD> The MMPA LOF classifies each commercial fishery as a Category I, II, or III fishery based on the level of mortality and injury of marine mammals occurring incidental to each fishery as defined in 50 CFR 229.2. Section 118(c)(2) of the MMPA requires fishing vessels that operate in Category I and II fisheries to register with NMFS and are subsequently authorized to incidentally take marine mammals during commercial fishing operations. However, that authorization is limited to those marine mammals that are not listed as threatened or endangered under the ESA. Section 118(a)(2) of the MMPA, 16 U.S.C. 1387(a)(2), also requires an additional authorization at section 101(a)(5) of the MMPA, 16 U.S.C. 1371, for incidental taking of ESA-listed marine mammals. Section 101(a)(5)(E) of the MMPA, 16 U.S.C. 1371, states that NMFS, as delegated by the Secretary of Commerce, for a period of up to 3 consecutive years shall allow the incidental, but not intentional, taking of marine mammal species or stocks designated as depleted because of their listing as an endangered species or threatened species under the ESA, 16 U.S.C. 1531 <E T="03">et seq.,</E> by persons using vessels of the United States, while engaging in commercial fishing operations, if NMFS makes certain determinations. NMFS must determine, after notice and opportunity for public comment, that: (1) incidental M/SI from commercial fisheries will have a negligible impact on the affected species or stock; (2) a recovery plan has been developed or is being developed for such species or stock pursuant to 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 TRP has been developed or is being developed for such species or stock. The LOF includes a list of marine mammal species or stocks incidentally killed or injured in each commercial fishery. We evaluated ESA-listed stocks or species included on the final 2024 MMPA LOF (89 FR 12257, February 16, 2024) as killed or seriously injured following NMFS' Procedural Directive 02-238 “Process for Distinguishing Serious from Non-Serious Injury of Marine Mammals.” Based on this evaluation, we propose to issue a permit under MMPA section 101(a)(5)(E) to vessels registered in the Category II CA thresher shark/swordfish drift gillnet (≥14 in mesh)/Pacific highly migratory species drift gillnet fishery, as classified on the final 2024 MMPA LOF, to incidentally kill or seriously injure individuals from the Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA stocks of humpback whale and CA/OR/WA stock of sperm whale. NMFS regularly evaluates commercial fisheries for purposes of making a negligible impact determination (NID) and issuing section 101(a)(5)(E) authorizations with the annual LOF as new information becomes available. More information about the fisheries is available in the 2024 MMPA LOF (89 FR 12257, February 16, 2024) and on the internet at: <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables.</E> We reviewed the best available scientific information to determine if the fishery met the three requirements of MMPA section 101(a)(5)(E) for issuing a permit. This information is included in the 2024 MMPA LOF (89 FR 12257, February 16, 2024), the SARs for these species (available at: <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</E> ), recovery plans for these species (available at: <E T="03">https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act</E> ), and other relevant information, as detailed further in the document describing the preliminary determination supporting the permit (available at: <E T="03">https://www.regulations.gov/docket/NOAA-NMFS-</E> 2025-0007). <HD SOURCE="HD1">Basis for Determining Negligible Impact</HD> Prior to issuing a MMPA 101(a)(5)(E) permit to take ESA-listed marine mammals incidental to commercial fishing, NMFS must determine if the M/SI incidental to commercial fisheries will have a negligible impact on the affected marine mammal species or stocks. NMFS satisfies this requirement by making a NID. Although the MMPA does not define “negligible impact,” NMFS has issued regulations providing a qualitative definition of “negligible impact,” defined in 50 CFR 216.103, as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. <HD SOURCE="HD1">Criteria for Determining Negl ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 31k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━