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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Notices
ESA Section 7 and National Environmental Policy Act Requirements ESA section 7a2 requires Federal agencies to ensure that actions they authorize, fund, or carry out do not jeopardize the existence of any species listed under the ESA, or destroy or adversely modify designated critical habitat of any ESA-listed species. The effects of the WA/OR/CA sablefish pot fishery on ESA-listed marine mammals were analyzed in an October 2020 ESA
section 7 Biological Opinion.
Under section 7 of the ESA, Biological Opinions analyze the effects of the proposed action on ESA-listed species and their critical habitat and, where appropriate, exempt anticipated future take of ESA-listed species as specified in the incidental take statement. Under MMPA section 101a5E, NMFS
analyzes previously documented M/SI
incidental to commercial fisheries through the negligible impact determination process, and when the necessary findings can be made, issues a MMPA section 101a5E permit that allows for an unspecified amount of incidental taking of specific ESA-listed marine mammal stocks while engaging in commercial fishing operations. Thus, the applicable standards and resulting analyses under the MMPA and ESA
differ, and as such, may not always align.
The National Environmental Policy Act NEPA requires Federal agencies to evaluate the impacts of alternatives for their actions on the human environment. Because this permit would not modify any fishery operation and the effects of the fishery operations have been evaluated in accordance with NEPA, no additional NEPA analysis beyond that conducted for the associated Fishery Management Plans is required for the permit. Issuing the permit would have no additional impact on the human environment or effects on threatened or endangered species beyond those analyzed in these documents.

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Comments and Responses On October 22, 2021, NMFS
published a notice and request for comments in the Federal Register for the proposed issuance of permit under MMPA section 101a5E to vessels registered in the Category II WA/OR/CA
sablefish pot fishery 86 FR 58641. The public comment period closed on November 8, 2021. NMFS received seven comment letters on the proposed issuance of the permit and underlying preliminary negligible impact determination. The Center for Biological
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Diversity CBD and a joint letter from Whale and Dolphin Conservation and Natural Resources Defense Council WDC/NRDC oppose issuing the permit while Langford Walton & Associates, Sablefish and Halibut Pot Association, and a member of the public support issuing the permit. In addition, the Fishing Vessels Owners Association supports issuing the permit and commented on several ways the ESA
section 7 Biological Opinion supported the determinations in the proposed MMPA 101a5E permit. NMFS also received a joint letter from Whale and Dolphin Conservation, Defenders of Wildlife and Natural Resources Defense Council WDC et al. requesting NMFS
extend the public comment period for the proposed permit. Only responses to substantive comments pertaining to the proposed permit and preliminary determination under MMPA section 101a5E are addressed below.
Comment 1: WDC et al. requested NMFS extend the comment period by 15-days for the proposed issuance of a MMPA 101a5E permit to authorize the incidental take of the CA/OR/WA
stock of humpback whales in the WA/
OR/CA sablefish pot fishery.
Response: NMFS did not grant an extension to the comment period, as the information presented in the proposed determination was not new but rather is based on the M/SI data from the most recent final humpback whale stock assessment report, published in 2020.
On June 17, 2020, NMFS finalized Procedure 0220402 Criteria for Determining Negligible Impact under MMPA section 101a5E. The procedural 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 criteria and process from that procedural directive, including the calculation for developing a negligible impact threshold, was used in order to determine that the WA/OR/CA sablefish pot fishery has a negligible impact on the CA/OR/WA stock of humpback whales. The NID determination and proposed MMPA 101a5E permit was based on the best available science on the stocks minimum population estimate, recovery factor, and the most recent estimates of M/SI in the WA/OR/
CA sablefish pot fishery.
Comment 2: CBD incorporates their previous comments submitted on both the NMFS draft Criteria for Determining Negligible Impact under MMPA Section 101a5E and the proposed MMPA 101a5E
authorizations published on October 5, 2020 85 FR 62709.

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Response: CBDs comments on the draft Criteria for Determining Negligible Impact under MMPA Section 101a5E were previously addressed by NMFS and are available at: https
www.fisheries.noaa.gov/action/criteriadetermining-negligible-impact-undermmpa-section-101a5e. Comments on the proposed MMPA 101a5E
authorizations published on October 5, 2020 85 FR 62709 were addressed in the Federal Register notice for the final MMPA 101a5E authorizations 86
FR 24384; May 6, 2021.
Comment 3: CBD asserts that because NMFS has not revised the CA/OR/WA
humpback whale stock structure following the designation of 14 DPS
under the ESA the assumptions of the negligible impact thresholds do not hold true. CBD raises two issues with applying NITt and NITs to the CA/OR/
WA stock of humpback whale: 1 The CA//OR/WA stock is not ESA-listed, and 2 the stock does not conform to the assumptions of PBR. CBD states that NMFS cannot assume that M/SI levels are below NITt and NITs for the WA/OR/
CA stock will not prevent recovery of the ESA-listed DPSs, especially the Central America DPS. They further note that the CA/OR/WA stock of humpback whale abundance estimate is based on mark-recapture models for closed populations, ignoring the designation of the ESA DPSs. CBD points to NMFS
Criteria for Determining Negligible Impact under MMPA Section 101a5E guidance and recommends a NID analysis be conducted for an ESAlisted stock that does not conform to the underlying assumptions of PBR and consider if there is an alternate approach to determining negligible impact. They request NMFS use an alternate approach, revise the draft NID, and make it available for public comment.
Response: Humpback whales were listed globally as endangered under the ESA in 1970 35 FR 18319. On September 8, 2016, NMFS published a final rule dividing the globally listed endangered humpback whale into 14
DPSs and categorizing four DPSs as endangered and one as threatened 81
FR 62259. NMFS is in the process of revising humpback whale stock structure under the MMPA in light of the 2016 final rule on humpback whale DPSs as established under the ESA. In doing so, NMFS is following the process laid out in Procedural Directive 02
20403: Reviewing and Designating Stocks and Issuing Stock Assessment Reports under the Marine Mammal Protection Act NMFS 2019. As noted by the commenters, the CA/OR/WA
stock of humpback whales does not
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