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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Notices align with the DPSs established under the ESA and comprises animals from the endangered Central American DPS, the threatened Mexico DPS, and the unlisted Hawaii DPS.
Because we cannot manage one portion of an MMPA stock as ESA-listed and another portion of a stock as not ESA-listed, until humpback whale stock structure has been revised, NMFS
continues to use the existing MMPA
stock structure for MMPA management purposes, including NIDs and 101a5E authorizations. Therefore, for purposes of evaluating the impact of the WA/OR/CA sablefish pot fishery under the MMPA, NMFS used the current MMPA designation of the CA/
OR/WA stock of humpback whales. In the case of the CA/OR/WA stock of humpback whales, for the purposes of this NID analysis, NMFS considers the entire stock to be endangered under the ESA and depleted under the MMPA. In addition, because the CA/OR/WA
humpback whale stock is considered to be transboundary, NMFS assumed NITt is exceeded and conducted the more conservative Tier 2 analysis with the lower NITs criterion.
Given this approach and ongoing efforts to revise humpback whale stock structure in the Pacific, NMFS has proceeded with a final NID for the WA/
OR/CA sablefish pot gear fishery with respect to the CA/OR/WA stock of humpback whales and is issuing a 101a5E permit for this fishery.
Nevertheless, if, during the 3-year authorization, there is a significant change in the information or conditions used to support any of these determinations, including a change in MMPA stock structure and associated estimates of abundance and M/SI
incidental to commercial fisheries, NMFS will re-evaluate the NID.
Comment 4: Both CBD and WDC/
NRDC note that the humpback whale recovery plan included in the proposed permit is for the world-wide population that was finalized in 1991. They state that NMFS identified 14 DPSs of humpback whales in 2016, and updated recovery plans have not been developed for the 14 DPSs. Therefore, the 1991
humpback whale recovery plan does not meet the requirement of MMPA section 101a5E.
Response: Given that the 1991 NMFS
Recovery Plan for humpback whales was written for the taxonomic species, it is still applicable to humpback whale DPSs within the species and still serves as a guide for recovery actions for the currently listed DPSs that occur in U.S.
waters. As noted in the final rule designating humpback whale critical habitat 86 FR 21082, April 21, 2021,
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some of the objectives of the 1991
Recovery Plan are still relevant today for the Mexico and Central America, and Western North Pacific DPSs.
Furthermore, NMFS is working to develop updated humpback DPS
recovery plans as resources allow.
However, the 1991 Recovery Plan satisfies the recovery plan need for the purposes of MMPA 101a5E, while new recovery plans are developed.
Comment 5: CBD states that NMFS
has not established a program to monitor incidental marine mammal M/
SI in the WA/OR/CA sablefish pot fishery. They note that the observer program that observes a portion of this fishery was not established to monitor marine mammal M/SI but to monitor groundfish catch composition.
Therefore, the monitoring program does not meet the requirements of MMPA
section 118d.
Response: The observer program in the sablefish pot fishery collects data on all target and non-target species, including the incidental M/SI of marine mammals. Data from the observer program is used by NMFS scientists to generate statistically valid estimates of entanglements and mortality/serious injury that are represented in the most recent SAR for the CA/OR/WA stock of humpback whales. As such, it satisfies the requirement in MMPA section 101a5EiIII. Given that estimates of entanglements produced from observer data are used in the NID
analysis, it is incorrect to state the NID
analysis relies only upon confirmed entanglement reports.
Comment 6: CBD states that NMFS is not developing and has not developed a TRP for humpback whales in the WA/
OR/CA sablefish pot fishery, noting NMFS response that developing a TRP
for the WA/OR/CA sablefish pot trap fishery and other similar Category II
fisheries has been deferred under MMPA section 118 as other stocks/
fisheries are a higher priority for any available funding for establishing new TRPs. They acknowledge that NMFS
updated the list of priorities for establishing TRTs in September 2021, and the CA/WA/OR stock of humpback whale remains a low priority for establishing a TRT. CBD disagrees with NMFS that the NMFS priorities for establishing TRTS meets the MMPA
section 101a5E requirement and asserts that MMPA section 101a5E
requires a TRP be in place or in development prior to authorizing incidental take of these ESA-listed marine mammals.
Response: As we have noted previously 86 FR 58641; October 22, 2021, MMPA section 118f3 contains
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specific priorities for developing TRPs if insufficient funding is available to further develop and implement TRPs for all applicable stocks and fisheries.
NMFS has insufficient funding available to simultaneously develop and implement TRPs for all strategic stocks that interact with Category I or Category II fisheries. Thus, NMFS prioritizes which stocks and fisheries to address under a TRP. MMPA section 118f provides that if there is insufficient funding available to develop and implement a take reduction plan for stocks that interact with Category I and II fisheries, the Secretary shall give highest priority to the development of TRPs for species or stocks whose level of incidental mortality and serious injury exceeds PBR, that have a small population size, and those that are declining most rapidly. As noted in the Federal Register notice announcing NMFSs proposed intent to issue a 101a5e permit for the WA/OR/CA
sablefish pot fishery, the CA/OR/WA
stock of humpback whale authorized to be incidentally taken under this permit is currently a lower priority for developing a TRP because of the low levels of M/SI incidental to commercial fishing compared to other marine mammal stocks and commercial fisheries.
Comment 7: WDC/NRDC comments that the proposed permit is based on the 2019 CA/OR/WA humpback whale SAR
and the 2019 SAR does not include upto-date data on confirmed entanglements in the WA/OR/CA
sablefish pot fishery reported in Carretta et al. 2021a. They also state that NMFS
did not include confirmed unattributed humpback whale entanglements in the NID analysis and, by doing so, NMFS
has underestimated humpback whale M/SI in the WA/OR/CA sablefish pot fishery.
Response: 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 published and is available for public comment 86
FR 58887; October 25, 2021. The M/SI
estimates in the draft 2021 CA/OR/WA
humpback whale SAR for the WA/OR/
CA sablefish pot fishery remain the same as the M/SI estimates in the final 2019 SAR. The 2014 humpback whale mortality and the 2016 humpback whale serious injuries in the WA/OR/CA
sablefish pot fishery reported in Carretta et al. 2021a are included in the M/SI
estimates in the 2019 CA/OR/WA
humpback whale SAR that was used in the analysis for the proposed permit.
Carretta et al. 2021a also includes a nonserious injury of a humpback whale in
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