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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Notices
on the internet at: https
www.fisheries.noaa.gov/national/
marine-mammal-protection/listfisheries-summary-tables.
We reviewed the best available scientific information to determine if the WA/OR/CA sablefish pot fishery met the three requirements of MMPA
section 101a5E for issuing a permit for the incidental taking of ESA-listed marine mammals. This information is included in the 2021 MMPA LOF 86 FR
3028; January 14, 2021, the SAR for CA/OR/WA stock of humpback whale available at: https
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessment-reports, the humpback whale recovery plan available at: https
www.fisheries.noaa.gov/national/
endangered-species-conservation/
recovery-species-under-endangeredspecies-act, and other relevant information, as detailed further in the document describing the preliminary and final determinations supporting the permit available at: https
www.regulations.gov/docket/NOAANMFS-2021-0092.
NMFS is in the process of revising humpback whale stock structure under the MMPA in light of the 14 Distinct Population Segments DPSs established under the ESA 81 FR 62259, September 8, 2016, based on the recently finalized Procedural Directive 0220403:
Reviewing and Designating Stocks and Issuing Stock Assessment Reports under the Marine Mammal Protection Act NMFS 2019. The DPSs that occur in waters under the jurisdiction of the United States do not align with the existing MMPA stocks. Some of the listed DPSs partially coincide with the currently defined stocks. Because we cannot manage one portion of an MMPA
stock as ESA-listed and another portion of a stock as not ESA-listed, until such time as the MMPA stock designations are revised in light of the ESA DPSs, NMFS continues to use the existing MMPA stock structure for MMPA
management purposes e.g., selection of a recovery factor, stock status and treats such stocks as ESA-listed if a component of that stock is listed under the ESA and overlaps with the analyzed commercial fishery. Therefore, for the purpose of this MMPA 101a5E
authorization, NMFS considered the CA/OR/WA stock of humpback whale to be ESA-listed as it overlaps with two ESA-listed DPSs Mexico and Central America.
Basis for Determining Negligible Impact Prior to issuing a MMPA 101a5E
permit to take ESA-listed marine
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mammals incidental to commercial fishing, NMFS must determine that 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.
Criteria for Determining Negligible Impact NMFS relies on a quantitative approach for determining negligible impact detailed in NMFS Procedural Directive 0220402 directive, Criteria for Determining Negligible Impact under MMPA section 101a5E, which became effective on June 17, 2020 NMFS 2020. The procedural directive is available online at: https www.fisheries.noaa.gov/
national/laws-and-policies/protectedresources-policy-directives. This directive describes NMFS process for determining whether incidental M/SI
from commercial fisheries will have a negligible impact on ESA-listed marine mammal species/stocks the first requirement necessary for issuing a MMPA section 101a5E permit as noted above.
The directive first describes the derivation of two Negligible Impact Thresholds NIT, which represent levels of removal from a marine mammal species or stock. The first, Total Negligible Impact Threshold NITt, represents the total amount of human-caused M/SI that NMFS
considers negligible for a given stock.
The second, lower threshold, Single NIT
NITs represents the level of M/SI from a single commercial fishery that NMFS
considers negligible for a stock. NITs was developed in recognition that some stocks may experience non-negligible levels of total human-caused M/SI but one or more individual fisheries may contribute a very small portion of that M/SI, and the effect of an individual fishery may be considered negligible.
The directive describes a detailed process for using these NIT values to conduct a NID analysis for each fishery classified as a Category I or II fishery on the MMPA LOF. The NID process uses a two-tiered analysis. The Tier 1
analysis first compares the total humancaused M/SI for a particular stock to NITt. If NITt is not exceeded, then all
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commercial fisheries that kill or seriously injure the stock are determined to have a negligible impact on the particular stock. If NITt is exceeded, then the Tier 2 analysis compares each individual fisherys M/SI
for a particular stock to NITs. If NITs is not exceeded, then the commercial fishery is determined to have a negligible impact on that particular stock. For transboundary, migratory stocks, because of the uncertainty regarding the M/SI that occurs outside of U.S. waters, we assume that total M/
SI exceeds NITt and proceed directly to the Tier 2 NITs analysis. If a commercial fishery has a negligible impact across all ESA-listed stocks, then the first of three findings necessary for issuing a MMPA
101a5E permit to the commercial fishery has been met i.e., a negligible impact determination. If a commercial fishery has a non-negligible impact on any ESA-listed stock, then NMFS
cannot issue a MMPA 101a5E
permit for the fishery to incidentally take ESA-listed marine mammals.
These NID criteria rely on the best available scientific information, including estimates of a stocks minimum population size and humancaused M/SI levels, as published in the most recent SARs and other supporting documents, as appropriate. Using these inputs, the quantitative negligible impact thresholds allow for straightforward calculations that lead to clear negligible or non-negligible impact determinations for each commercial fishery analyzed. In rare cases, robust data may be unavailable for a straightforward calculation, and the directive provides instructions for completing alternative calculations or assessments where appropriate.
Negligible Impact Determination NMFS evaluated the impact of the WA/OR/CA sablefish pot fishery using the process outlined in the directive, and, based on the best available scientific information, made a NID.
The CA/OR/WA stock of humpback whale is a transboundary stock. As noted above, because of the uncertainty regarding M/SI that occurs outside of U.S. waters for transboundary stocks, we assumed that total M/SI exceeds NITt and proceeded directly to the Tier 2 NITs analysis. The proposed NID
relied on the final 2019 CA/OR/WA
humpback whale SAR. Since the publication of the proposed MMPA
101a5E permit for the WA/OR/CA
sablefish pot fishery, the draft 2021 SAR
for the CA/OR/WA stock of humpback whales was published 86 FR 58887;
October 25, 2021. The M/SI estimates in the draft 2021 CA/OR/WA humpback
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