RTID 0648-XE813], 23914-23918 [2025-10256]
Download as PDF
<![CDATA[
23914
Federal Register / Vol. 90, No. 107 / Thursday, June 5, 2025 / Notices
cannot extend beyond 1 year from
expiration of the initial IHA).
• The request for renewal must
include the following:
(1) An explanation that the activities
to be conducted under the requested
renewal IHA are identical to the
activities analyzed under the initial
IHA, are a subset of the activities, or
include changes so minor (e.g.,
reduction in pile size) that the changes
do not affect the previous analyses,
mitigation and monitoring
requirements, or take estimates (with
the exception of reducing the type or
amount of take).
(2) A preliminary monitoring report
showing the results of the required
monitoring to date and an explanation
showing that the monitoring results do
not indicate impacts of a scale or nature
not previously analyzed or authorized.
• Upon review of the request for
renewal, the status of the affected
species or stocks, and any other
pertinent information, NMFS
determines that there are no more than
minor changes in the activities, the
mitigation and monitoring measures
will remain the same and appropriate,
and the findings in the initial IHA
remain valid.
Dated: June 2, 2025.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2025–10232 Filed 6–4–25; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RTID 0648–XE813]
Taking of Threatened or Endangered
Marine Mammals Incidental to
Commercial Fishing Operations;
Issuance of Permit
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice.
AGENCY:
NMFS is issuing 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 defined on the MMPA List
khammond on DSK9W7S144PROD with NOTICES
SUMMARY:
VerDate Sep<11>2014
16:48 Jun 04, 2025
Jkt 265001
of Fisheries (LOF) 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.
DATES: This permit is effective
beginning June 5, 2025 through
December 31, 2027.
ADDRESSES: The materials supporting
the permit are available on the internet
at https://www.regulations.gov/docket/
NOAA-NMFS-2025-0007. Other
supporting information is available on
the internet including: recovery plans
for the ESA-listed marine mammal
species, https://www.fisheries.noaa.gov/
national/endangered-speciesconservation/recovery-species-underendangered-species-act; 2024 MMPA
LOF, https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
list-fisheries-summary-tables; the most
recent Marine Mammal Stock
Assessment Reports (SAR) by region,
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessmentreports-region, and stock, https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessment-reportsspecies-stock; and Take Reduction
Teams (TRT) and Plans, https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-take-reduction-plans-andteams.
FOR FURTHER INFORMATION CONTACT: Dan
Lawson, West Coast Region, (206) 526–
4740, Dan.Lawson@noaa.gov, or Jaclyn
Taylor, NMFS Office of Protected
Resources, (301) 427–8402,
Jaclyn.Taylor@noaa.gov.
SUPPLEMENTARY INFORMATION: The
MMPA requires NMFS to authorize the
incidental take of ESA-listed marine
mammals in Category I and II
commercial fisheries provided: (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
determined 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 are issuing a
PO 00000
Frm 00031
Fmt 4703
Sfmt 4703
permit to the fishery to authorize the
incidental take of ESA-listed marine
mammal species or stocks (Central
America/Southern Mexico-CA/Oregon
(OR)/Washington (WA) and Mainland
Mexico-CA/OR/WA stocks of humpback
whale; CA/OR/WA stock of sperm
whale) under the MMPA through
December 31, 2027.
Background
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. Section
118(a)(2) of the MMPA, 16 U.S.C.
1387(a)(2), also requires an additional
authorization for these fisheries at
section 101(a)(5) of the MMPA, 16
U.S.C. 1371(a)(5), for incidental taking
of ESA-listed marine mammals. Section
101(a)(5)(E) of the MMPA, 16 U.S.C.
1371(a)(5), 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 et seq., 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 marine mammal
species or stocks listed under the ESA
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
E:\FR\FM\05JNN1.SGM
05JNN1
Federal Register / Vol. 90, No. 107 / Thursday, June 5, 2025 / Notices
Mammals.’’ Based on this evaluation,
we are issuing 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 (90 FR
12148, March 14, 2025).
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: https://www.fisheries.
noaa.gov/national/marine-mammalprotection/list-fisheries-summary-tables.
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: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessment-reports),
recovery plans for these species
(available at: https://www.fisheries.
noaa.gov/national/endangered-speciesconservation/recovery-species-underendangered-species-act), and other
relevant information, as detailed further
in the document describing the
determinations supporting the permit
(available at: https://
www.regulations.gov/docket/NOAANMFS-2025-0007).
khammond on DSK9W7S144PROD with NOTICES
Basis for Determining Negligible Impact
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’ regulations provide 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.
VerDate Sep<11>2014
16:48 Jun 04, 2025
Jkt 265001
Criteria for Determining Negligible
Impact
NMFS uses a quantitative approach
for determining negligible impact
detailed in NMFS Procedural Directive
02–204–02 (directive), ‘‘Criteria for
Determining Negligible Impact under
MMPA section 101(a)(5)(E).’’ The
procedural directive is available online
at: https://www.fisheries.noaa.gov/
national/laws-and-policies/protectedresources-policy-directives. The
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 101(a)(5)(E) 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 NIT
(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 even
though 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 by stock 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
human-caused M/SI for a particular
stock to NITt. If NITt is not exceeded,
then all 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 commercial
fishery’s 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 where the M/SI that
occurs outside of U.S. waters is
uncertain, we generally 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 101(a)(5)(E) permit to
PO 00000
Frm 00032
Fmt 4703
Sfmt 4703
23915
the commercial fishery has been met
(i.e., a NID). If a commercial fishery has
a non-negligible impact on any ESAlisted stock, then the requirements of
MMPA 101(a)(5)(E) are not met, and
NMFS cannot issue a 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 stock’s
minimum population size and humancaused M/SI levels, as published in the
most recent SARs and other supporting
documents, as appropriate. In using this
information, 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 CA
thresher shark/swordfish drift gillnet
(≥14 in mesh)/Pacific highly migratory
species drift gillnet fishery, following
the directive and based on the best
available scientific information, and
made a NID. The NID analysis is
presented in the accompanying MMPA
101(a)(5)(E) evaluation document
provides summaries of the information
used to evaluate each ESA-listed stock
documented on the 2024 MMPA LOF as
killed or injured incidental to the
fishery (available at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/listfisheries-summary-tables). The MMPA
101(a)(5)(E) evaluation document is
available at: https://
www.regulations.gov/docket/NOAANMFS-2025-0007.
The Central America/Southern
Mexico-CA/OR/WA and Mainland
Mexico-CA/OR/WA stocks of humpback
whale are transboundary. The CA/OR/
WA stock of sperm whales is also
transboundary based on the description
of the stock’s geographic range in the
2023 SAR (Carretta et al. 2024). A recent
study by Wild et al. (2024) found that
after foraging in the Gulf of Alaska,
tagged male sperm whales travelled
south, along the west coast of North
America, down to Mexican waters.
Because the M/SI that occurs outside of
U.S. waters for these transboundary
stocks is uncertain, we proceeded
directly to the Tier 2 NITs analysis.
Based on the criteria outlined in the
directive, the most recent SARs, and the
best available scientific information,
E:\FR\FM\05JNN1.SGM
05JNN1
khammond on DSK9W7S144PROD with NOTICES
23916
Federal Register / Vol. 90, No. 107 / Thursday, June 5, 2025 / Notices
NMFS has determined that the M/SI of
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 incidental
to the CA thresher shark/swordfish drift
gillnet (≥14 in mesh)/Pacific highly
migratory species drift gillnet fishery
will have a negligible impact on these
stocks. Accordingly, this MMPA
101(a)(5)(E) requirement is satisfied for
CA thresher shark/swordfish drift
gillnet (≥14 in mesh)/Pacific highly
migratory species drift gillnet fishery
(see MMPA 101(a)(5)(E) determination
document, available at: https://
www.regulations.gov/docket/NOAANMFS-2025-0007). Summaries of the
NID analyses are provided below.
The Category II CA thresher shark/
swordfish drift gillnet (≥14 in mesh)/
Pacific highly migratory species drift
gillnet fishery has documented
incidental M/SI of the Central America/
Southern Mexico-CA/OR/WA and
Mainland Mexico-CA/OR/WA stocks of
humpback whale and the CA/OR/WA
stock of sperm whale. The 2022 SAR
(data from 2016–2020) includes mean
annual total commercial fishery-related
M/SI for the Central America/Southern
Mexico-CA/OR/WA stock of humpback
whale (8.1) and Mainland Mexico-CA/
OR/WA stock of humpback whale (11.4)
(Carretta et al. 2023). The 2023 SAR
(data from 2017–2021) includes a mean
annual total commercial fishery-related
M/SI for the CA/OR/WA stock of sperm
whales of 0.52 (Carretta et al. 2024).
These comprise M/SI from all
commercial fisheries, including the CA
thresher shark/swordfish drift gillnet
(≥14 in mesh)/Pacific highly migratory
species drift gillnet fishery, as well as
fishery-related M/SI for the stock not
assigned to a specific commercial
fishery.
A more recent publication, Carretta
(2024), includes bycatch data from 1990
through 2023 for the CA thresher shark/
swordfish drift gillnet (≥14 in mesh)/
Pacific highly migratory species drift
gillnet fishery. NMFS used M/SI from
2019–2023 from Carretta (2024) for the
NID analyses discussed below.
Estimated M/SI of the Central
America/Southern Mexico-CA/OR/WA
stock of humpback whales in the fishery
is 0.17 (Carretta 2024) and is less than
NITs (0.68). Estimated M/SI of the
Mainland Mexico-CA/OR/WA stock of
humpback whales in the fishery is 0.231
(Carretta 2024) and is less than NITs
(1.70). Estimated M/SI of sperm whales
fishery is zero (Carretta 2024) and is less
than NITs (0.523). Since M/SI for all
three stocks are less than their
respective NITs thresholds, NMFS
determined that the CA thresher shark/
VerDate Sep<11>2014
16:48 Jun 04, 2025
Jkt 265001
swordfish drift gillnet (≥14 in mesh)/
Pacific highly migratory species drift
gillnet fishery has a negligible impact on
the Central America/Southern MexicoCA/OR/WA and Mainland Mexico-CA/
OR/WA stocks of humpback whale and
the CA/OR/WA stock of sperm whale
(see accompanying MMPA 101(a)(5)(E)
evaluation document).
The most recent SARs for 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 include
fishery-related M/SI not assigned to a
specific commercial fishery. This
unattributed fishery-related M/SI could
be from any number of commercial,
recreational, or tribal fisheries.
However, because this fishery is
observed (∼20 percent observer
coverage) we are confident that any
unobserved humpback or sperm whale
M/SI in the CA thresher shark/
swordfish drift gillnet (≥14 in mesh)/
Pacific highly migratory species drift
gillnet fishery is accounted for in the
model-based M/SI estimates for these
stocks (Carretta 2024). Given this, any
unattributed fishery-related M/SI that
may be incidental to this specific
commercial fishery is already accounted
for, and we did not include unattributed
mortality in the calculations for NID
Tier 2 analyses (described above).
NMFS is actively monitoring this
fishery through a fishery observer
program. If additional fishery-related M/
SI is documented through the observer
program and/or required reporting
indicates additional M/SI of the Central
America/Southern Mexico-CA/OR/WA
and Mainland Mexico-CA/OR/WA
stocks of humpback whale or CA/OR/
WA stock of sperm whale is occurring,
then NMFS will re-evaluate the NIDs
and the permit.
Recovery Plans
A recovery plan for sperm whales has
been developed (see https://
www.fisheries.noaa.gov/national/
endangered-species-conservation/
recovery-species-under-endangeredspecies-act).
A recovery plan for the globally ESAlisted humpback whale species was
developed in 1991. In 2016, NMFS
revised the listing status of the
humpback whale under the ESA. The
globally listed endangered species was
divided into 14 distinct population
segments (DPSs), the species-level
listing was removed, and NMFS listed
four DPSs as endangered and one DPS
as threatened (81 FR 62260, September
8, 2016). In June 2022, NMFS published
a recovery outline for the Central
America, Mexico, and Western North
PO 00000
Frm 00033
Fmt 4703
Sfmt 4703
Pacific DPSs of humpback whales
(https://www.fisheries.noaa.gov/
resource/document/recovery-outlinecentral-america-mexico-and-westernnorth-pacific-distinct). The recovery
outline serves as an interim guidance
document and, with the existing
species-wide recovery plan, directs
recovery efforts, including recovery
planning, for the Central America and
Mexico DPSs of humpback whales.
These DPSs correspond with the Central
America/Southern Mexico-CA/OR/WA
and Mainland Mexico-CA/OR/WA
stocks of humpback whales,
respectively. Once finalized, the new
recovery plan will replace the specieswide recovery plan.
Accordingly, the requirement that a
recovery plan has been developed
pursuant to the ESA is satisfied.
Take Reduction Plan
MMPA section 118 requires the
development and implementation of a
TRP for each strategic stock that
interacts with a Category I or II fishery.
The stocks considered for this permit
are designated as strategic stocks under
the MMPA because the stocks or a
component of the stocks are listed as
threatened species or endangered
species under the ESA (MMPA section
3(19)(C)). A TRP for the CA thresher
shark/swordfish drift gillnet (≥14 in
mesh)/Pacific highly migratory species
drift gillnet fishery and the affected
marine mammal species or stocks
(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) has been
developed (see Pacific Offshore
Cetacean Take Reduction Plan https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/pacificoffshore-cetacean-take-reduction-plan).
Accordingly, the requirement under
MMPA section 118 to have a TRP in
place or in development is satisfied (see
determinations supporting the permit
available on the internet at https://
www.regulations.gov/docket/NOAANMFS-2025-0007).
Monitoring Program
Under MMPA section 118(d), NMFS
is to establish a program for monitoring
incidental M/SI of marine mammals
from commercial fishing operations.
The CA thresher shark/swordfish drift
gillnet (≥14 in mesh)/Pacific highly
migratory species drift gillnet fishery is
monitored by a NMFS fishery observer
program. Accordingly, the requirement
under MMPA section 118 to have a
monitoring program in place is satisfied.
E:\FR\FM\05JNN1.SGM
05JNN1
Federal Register / Vol. 90, No. 107 / Thursday, June 5, 2025 / Notices
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. NMFS
has integrated the MMPA registration
process, implemented through the
Marine Mammal Authorization
Program, with existing State and Federal
fishery license, registration, or permit
systems for Category I and II fisheries on
the LOF. Therefore, the requirement for
vessel registration is satisfied.
Conclusions for Permit
Based on the above evaluation for the
CA thresher shark/swordfish drift
gillnet (≥14 in mesh)/Pacific highly
migratory species drift gillnet fishery as
it relates to the three requirements of
MMPA section 101(a)(5)(E), we are
issuing an MMPA 101(a)(5)(E) permit to
the CA thresher shark/swordfish drift
gillnet (≥14 in mesh)/Pacific highly
migratory species drift gillnet fishery to
authorize the incidental take of three
particular ESA-listed species or stocks
during commercial fishing operations.
The permit covers the period from
publication of this notice until
December 31, 2027, when the CA
thresher shark/swordfish drift gillnet
(≥14 in mesh)/Pacific highly migratory
species drift gillnet fishery will be
phased out as mandated by the Driftnet
Modernization and Bycatch Reduction
Act of 2022. If, during the authorization
period, there is a significant change in
the information or conditions used to
support any of these determinations,
NMFS will re-evaluate whether to
amend or modify the authorization, after
notice and opportunity for public
comment.
khammond on DSK9W7S144PROD with NOTICES
ESA Section 7 and National
Environmental Policy Act (NEPA)
Requirements
ESA section 7(a)(2) requires Federal
agencies to ensure that actions they
authorize, fund, or carry out do not
jeopardize the continued existence of
any species listed under the ESA, or
destroy or adversely modify designated
critical habitat of any ESA-listed
species. The effects of CA thresher
shark/swordfish drift gillnet (≥14 in
mesh)/Pacific highly migratory species
drift gillnet fishery on ESA-listed
marine mammals, were analyzed in the
appropriate ESA section 7 Biological
Opinion on the commercial fishery (see
https://repository.library.noaa.gov/view/
noaa/51058), and issued incidental take
for those ESA-listed marine mammals
for the CA thresher shark/swordfish
drift gillnet (≥14 in mesh)/Pacific highly
VerDate Sep<11>2014
16:48 Jun 04, 2025
Jkt 265001
migratory species drift gillnet fishery in
accordance with the Biological
Opinions’ incidental take statement.
Under section 7 of the ESA, Biological
Opinions quantify the effects of the
proposed action on ESA-listed species
and their critical habitat and, where
appropriate, exempt take of ESA-listed
species that is reasonably certain to
occur, as specified in the incidental take
statement.
Under MMPA section 101(a)(5)(E),
NMFS analyzes previously documented
M/SI incidental to commercial fisheries
through the NID process, and when the
necessary findings can be made, issues
an MMPA section 101(a)(5)(E) 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, do not always align.
NEPA requires Federal agencies to
evaluate the impacts of alternatives for
their actions on the human
environment. Because the 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 Plan 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.
Comments and Responses
On March 14, 2024, NMFS published
a notice and request for comments in
the Federal Register for the proposed
issuance of a permit under MMPA
section 101(a)(5)(E) (90 FR 12148). The
public comment period closed on April
14, 2025. NMFS received three
comment letters opposing the proposed
issuance of a permit to the CA thresher
shark/swordfish drift gillnet (≥14 in
mesh)/Pacific highly migratory species
drift gillnet fishery and its underlying
preliminary determinations. Only
responses to significant comments
pertaining to the proposed permit and
preliminary determinations under
MMPA section 101(a)(5)(E) for the CA
thresher shark/swordfish drift gillnet
(≥14 in mesh)/Pacific highly migratory
species drift gillnet fishery are
addressed below.
Comment 1: Center for Biological
Diversity (CBD) comments that the
Driftnet Modernization and Bycatch
Reduction Act of 2022 required the
phase-out of the CA drift gillnet fishery
within 5 years. They state that NMFS
PO 00000
Frm 00034
Fmt 4703
Sfmt 4703
23917
must not authorize the fishery to
incidentally take ESA-listed species or
stocks after December 29, 2027.
Response: NMFS agrees. The Driftnet
Modernization and Bycatch Reduction
Act was enacted on December 29, 2022,
and it phases out the use of large mesh
drift gillnet gear by December 2027. The
permit issued to the CA thresher shark/
swordfish drift gillnet (≥14 in mesh)/
Pacific highly migratory species drift
gillnet fishery authorizing the incidental
take of specific ESA-listed marine
mammal species or stocks under the
MMPA will expire on December 31,
2027.
Comment 2: CBD states that the 2023
‘‘Biological Opinion on Continued
Operation of the Large Mesh Drift
Gillnet Fishery’’ anticipated incidental
take of endangered fin whales, and
NMFS failed to analyze if this take of fin
whales is negligible under MMPA
section 101(a)(5)(E). They assert that
issuing an incidental take statement for
fin whales in the Biological Opinion,
and not authorizing the take under the
MMPA, violates the ESA and MMPA.
Response: Following NMFS’
Procedural Directive 02–238 ‘‘Process
for Distinguishing Serious from NonSerious Injury of Marine Mammals,’’
NMFS evaluated ESA-listed stocks or
species included on the final 2024
MMPA LOF (89 FR 12257, February 16,
2024) as killed or seriously injured in
the CA thresher shark/swordfish drift
gillnet (≥14 in mesh)/Pacific highly
migratory species drift gillnet fishery.
Based on this evaluation, we proposed
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 (90 FR 12148, March 14,
2025).
Fin whales are not included on the
list of marine mammal species/stocks
killed or injured in the Category II CA
thresher shark/swordfish drift gillnet
(≥14 in mesh)/Pacific highly migratory
species drift gillnet fishery in the most
recent final LOF (2024). In addition,
there has not been an observed fin
whale M/SI in the CA thresher shark/
swordfish drift gillnet (≥14 in mesh)/
Pacific highly migratory species drift
gillnet fishery since 1999.
Although NMFS predicted that there
would be incidental take of one fin
whale in the fishery in the 2023
‘‘Biological Opinion on Continued
E:\FR\FM\05JNN1.SGM
05JNN1
khammond on DSK9W7S144PROD with NOTICES
23918
Federal Register / Vol. 90, No. 107 / Thursday, June 5, 2025 / Notices
Operation of the Large Mesh Drift
Gillnet Fishery’’ over a 5-year period
(NMFS 2023), given there have been no
documented fin whale M/SI in the CA
thresher shark/swordfish drift gillnet
(≥14 in mesh)/Pacific highly migratory
species drift gillnet fishery since 1999
and the specific requirements of MMPA
101(a)(5)(E), additional take
authorization under MMPA section
101(a)(5)(E) is not required for the
remaining years the fishery is in
operation (until December 31, 2027). In
addition, using M/SI from 2019–2023,
estimated M/SI of fin whales (CA/OR/
WA stock) in the CA thresher shark/
swordfish drift gillnet (≥14 in mesh)/
Pacific highly migratory species drift
gillnet fishery is zero (Carretta 2024).
Therefore, the CA thresher shark/
swordfish drift gillnet (≥14 in mesh)/
Pacific highly migratory species drift
gillnet fishery has a negligible impact on
the CA/OR/WA stock of fin whale.
Comment 3: CBD states that NMFS’
proposed MMPA 101(a)(5)(E)
authorization did not use the best
available science regarding the number
of large whale entanglements on the
West Coast. They note that the Federal
Register notice uses M/SI data from
Carretta 2023; however, a more recent
publication provides data through 2024
(Carretta 2024). CBD further states that
the analysis does not reference the 2024
West Coast large whale entanglement
summary. CBD also comments that the
NID for the Central America DPS of
humpback whales does not consider
background levels of M/SI occurring
from other commercial fisheries.
Response: In this final permit, NMFS
updated the NID analyses for 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 using M/SI
data from 2019–2023 in the Carretta
(2024) publication (see accompanying
MMPA 101(a)(5)(E) evaluation
document). The M/SI estimates in the
CA thresher shark/swordfish drift
gillnet (≥14 in mesh)/Pacific highly
migratory species drift gillnet fishery
from 2019–2023 (Carretta 2024) were
identical to the M/SI estimated reported
from 2018–2022 (Carretta 2023). As
such, the NIDs remain the same as
analyzed in the proposed permit for the
fishery (90 FR 12148, March 14, 2025).
In addition, the West Coast Large
Whale Entanglement Summary (NMFS
2025) referenced by CBD published in
April 2025 after the proposed MMPA
101(a)(5)(E) permit for the CA thresher
shark/swordfish drift gillnet (≥14 in
mesh)/Pacific highly migratory species
drift gillnet fishery published in the
Federal Register (90 FR 12148, March
VerDate Sep<11>2014
16:48 Jun 04, 2025
Jkt 265001
14, 2025). In 2024, there were no
confirmed entanglements of humpback
whales in CA drift gillnet gear nor any
documented sperm whale
entanglements (NMFS 2025). While
there was one report of a humpback
whale entangled in an unknown gillnet,
we do not have evidence to link this
entanglement to the CA drift gillnet
fishery (NMFS 2025).
Comment 4: CBD comments that
NMFS is not developing nor has
developed a recovery plan for ESAlisted humpback whale DPSs. They
assert that because NMFS identified 14
humpback whale DPSs in 2016, the
1991 recovery plan is out of date and
does not meet the requirements of
MMPA section 101(a)(5)(E). They
continue that NMFS cannot rely on the
recovery outline published in June
2022, and that the revised recovery plan
for humpback whales has been
postponed indefinitely.
Response: As noted, a recovery plan
for the humpback whale species (global
listing) was developed in 1991. In June
2022, NMFS published a recovery
outline for the Central America, Mexico,
and Western North Pacific DPSs of
humpback whales (https://
www.fisheries.noaa.gov/resource/
document/recovery-outline-centralamerica-mexico-and-western-northpacific-distinct). This recovery outline
serves as an interim guidance document
and, along with the existing specieswide recovery plan, directs recovery
efforts, including recovery planning, for
the Central America (Central America/
Southern Mexico-CA/OR/WA stock) and
Mexico (Mainland Mexico-CA/OR/WA
stock) DPSs of humpback whales. NMFS
is actively developing a new recovery
plan specific to the ESA-listed DPSs; it
has not been postponed indefinitely as
CBD purports. Once finalized, this new
recovery plan will replace the specieswide recovery plan that was published
in 1991.
References
Carretta, James V. 2024. Estimates of Marine
Mammal, Sea Turtle, and Seabird
Bycatch in the California Large-Mesh
Drift Gillnet Fishery: 1990–2023. U.S.
Department of Commerce, NOAA
Technical Memorandum NMFS–
SWFSC–700. 68 p.
Carretta, James V. 2023. Estimates of Marine
Mammal, Sea Turtle, and Seabird
Bycatch in the California Large-Mesh
Drift Gillnet Fishery: 1990–2022. U.S.
Department of Commerce, NOAA
Technical Memorandum NMFS–
SWFSC–687. 67 p.
Carretta, J.W., E.M. Oleson, K.A. Forney,
M.M. Muto, D.W. Weller, A.R. Lang, J.
Baker, B. Hanson, A.J. Orr, J. Barlow, J.E.
Moore, and R.L. Brownell. 2023. U.S.
PO 00000
Frm 00035
Fmt 4703
Sfmt 4703
Pacific Marine Mammal Stock
Assessments: 2022. U.S. Department of
Commerce. NOAA Technical
Memorandum NMFS–SWFSC–684. 409
p.
Carretta, J.W., E.M. Oleson, K.A. Forney, A.L.
Bradford, K. Yano, D.W. Weller, A.R.
Lang, J. Baker, B. Hanson, A.J. Orr, J.E.
Moore, M. Wallen and R.L. Brownell.
2024. U.S. Pacific Marine Mammal Stock
Assessments: 2023. U.S. Department of
Commerce. NOAA Technical
Memorandum NMFS–SWFSC–704. 420
p.
Wild, L.A., Mueter, F.J., Straley, J.M. and
Andrews, R.D., 2024. Movement and
Diving Behavior of Satellite-Tagged Male
Sperm Whales in the Gulf of Alaska.
Frontiers in Marine Science, 11,
p.1394687.
National Marine Fisheries Service (NMFS).
2025. 2024 West Coast Whale
Entanglement Summary. https://
www.fisheries.noaa.gov/s3//2025-04/
2024-whale-entanglements-report.pdf.
National Marine Fisheries Service (NMFS).
2023. Biological Opinion on Continued
Operation of the Large Mesh Drift Gillnet
Fishery. NMFS Consultation Number:
2023–00435. 204 p. Available online:
https://repository.library.noaa.gov/view/
noaa/51058.
National Marine Fisheries Service (NMFS).
2020. National Marine Fisheries Service
Procedure 02–204–02: Criteria for
Determining Negligible Impact under
MMPA Section 101(a)(5)(E). 20 p.
Available online: https://www.fisheries.
noaa.gov/national/laws-and-policies/
protected-resources-policy-directives.
Dated: June 2, 2025.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2025–10256 Filed 6–4–25; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
Agency Information Collection
Activities; Submission to the Office of
Management and Budget for Review
and Approval; Comment Request;
Practitioner Conduct and Discipline
United States Patent and
Trademark Office, Department of
Commerce.
ACTION: Notice of information collection;
request for comments.
AGENCY:
The United States Patent and
Trademark Office (USPTO) will submit
the following information collection
request to the Office of Management and
Budget (OMB) for review and clearance
in accordance with the Paperwork
Reduction Act of 1995, on or after the
date of publication of this notice. The
USPTO invites comments on this
SUMMARY:
E:\FR\FM\05JNN1.SGM
05JNN1
]]>Agencies
[Federal Register Volume 90, Number 107 (Thursday, June 5, 2025)]
[Notices]
[Pages 23914-23918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-10256]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RTID 0648-XE813]
Taking of Threatened or Endangered Marine Mammals Incidental to
Commercial Fishing Operations; Issuance of Permit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: NMFS is issuing 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 defined on the MMPA List of Fisheries
(LOF) 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.
DATES: This permit is effective beginning June 5, 2025 through December
31, 2027.
ADDRESSES: The materials supporting the permit are available on the
internet at https://www.regulations.gov/docket/NOAA-NMFS-2025-0007.
Other supporting information is available on the internet including:
recovery plans for the ESA-listed marine mammal species, https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act; 2024 MMPA LOF, https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables; the most recent Marine Mammal Stock
Assessment Reports (SAR) by region, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region, and stock, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-
species-stock; and Take Reduction Teams (TRT) and Plans, https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams.
FOR FURTHER INFORMATION CONTACT: Dan Lawson, West Coast Region, (206)
526-4740, [email protected], or Jaclyn Taylor, NMFS Office of
Protected Resources, (301) 427-8402, [email protected].
SUPPLEMENTARY INFORMATION: The MMPA requires NMFS to authorize the
incidental take of ESA-listed marine mammals in Category I and II
commercial fisheries provided: (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
determined 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 are issuing a permit to the
fishery to authorize the incidental take of ESA-listed marine mammal
species or stocks (Central America/Southern Mexico-CA/Oregon (OR)/
Washington (WA) and Mainland Mexico-CA/OR/WA stocks of humpback whale;
CA/OR/WA stock of sperm whale) under the MMPA through December 31,
2027.
Background
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. Section 118(a)(2) of the MMPA, 16 U.S.C.
1387(a)(2), also requires an additional authorization for these
fisheries at section 101(a)(5) of the MMPA, 16 U.S.C. 1371(a)(5), for
incidental taking of ESA-listed marine mammals. Section 101(a)(5)(E) of
the MMPA, 16 U.S.C. 1371(a)(5), 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
et seq., 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
marine mammal species or stocks listed under the ESA 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
[[Page 23915]]
Mammals.'' Based on this evaluation, we are issuing 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 (90
FR 12148, March 14, 2025).
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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables.
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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports), recovery plans for these
species (available at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act), and other relevant information, as detailed further in
the document describing the determinations supporting the permit
(available at: https://www.regulations.gov/docket/NOAA-NMFS-2025-0007).
Basis for Determining Negligible Impact
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' regulations provide 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 uses a quantitative approach for determining negligible impact
detailed in NMFS Procedural Directive 02-204-02 (directive), ``Criteria
for Determining Negligible Impact under MMPA section 101(a)(5)(E).''
The procedural directive is available online at: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives. The 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 101(a)(5)(E)
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 NIT (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 even though 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 by stock 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
human-caused M/SI for a particular stock to NITt. If
NITt is not exceeded, then all 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 commercial fishery's 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 where the M/SI that occurs outside of U.S. waters is
uncertain, we generally 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
101(a)(5)(E) permit to the commercial fishery has been met (i.e., a
NID). If a commercial fishery has a non-negligible impact on any ESA-
listed stock, then the requirements of MMPA 101(a)(5)(E) are not met,
and NMFS cannot issue a 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 stock's minimum population size
and human-caused M/SI levels, as published in the most recent SARs and
other supporting documents, as appropriate. In using this information,
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 CA thresher shark/swordfish drift
gillnet (>=14 in mesh)/Pacific highly migratory species drift gillnet
fishery, following the directive and based on the best available
scientific information, and made a NID. The NID analysis is presented
in the accompanying MMPA 101(a)(5)(E) evaluation document provides
summaries of the information used to evaluate each ESA-listed stock
documented on the 2024 MMPA LOF as killed or injured incidental to the
fishery (available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables). The MMPA 101(a)(5)(E)
evaluation document is available at: https://www.regulations.gov/docket/NOAA-NMFS-2025-0007.
The Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-
CA/OR/WA stocks of humpback whale are transboundary. The CA/OR/WA stock
of sperm whales is also transboundary based on the description of the
stock's geographic range in the 2023 SAR (Carretta et al. 2024). A
recent study by Wild et al. (2024) found that after foraging in the
Gulf of Alaska, tagged male sperm whales travelled south, along the
west coast of North America, down to Mexican waters. Because the M/SI
that occurs outside of U.S. waters for these transboundary stocks is
uncertain, we proceeded directly to the Tier 2 NITs
analysis.
Based on the criteria outlined in the directive, the most recent
SARs, and the best available scientific information,
[[Page 23916]]
NMFS has determined that the M/SI of 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 incidental to the CA thresher shark/
swordfish drift gillnet (>=14 in mesh)/Pacific highly migratory species
drift gillnet fishery will have a negligible impact on these stocks.
Accordingly, this MMPA 101(a)(5)(E) requirement is satisfied for CA
thresher shark/swordfish drift gillnet (>=14 in mesh)/Pacific highly
migratory species drift gillnet fishery (see MMPA 101(a)(5)(E)
determination document, available at: https://www.regulations.gov/docket/NOAA-NMFS-2025-0007). Summaries of the NID analyses are provided
below.
The Category II CA thresher shark/swordfish drift gillnet (>=14 in
mesh)/Pacific highly migratory species drift gillnet fishery has
documented incidental M/SI of the Central America/Southern Mexico-CA/
OR/WA and Mainland Mexico-CA/OR/WA stocks of humpback whale and the CA/
OR/WA stock of sperm whale. The 2022 SAR (data from 2016-2020) includes
mean annual total commercial fishery-related M/SI for the Central
America/Southern Mexico-CA/OR/WA stock of humpback whale (8.1) and
Mainland Mexico-CA/OR/WA stock of humpback whale (11.4) (Carretta et
al. 2023). The 2023 SAR (data from 2017-2021) includes a mean annual
total commercial fishery-related M/SI for the CA/OR/WA stock of sperm
whales of 0.52 (Carretta et al. 2024). These comprise M/SI from all
commercial fisheries, including the CA thresher shark/swordfish drift
gillnet (>=14 in mesh)/Pacific highly migratory species drift gillnet
fishery, as well as fishery-related M/SI for the stock not assigned to
a specific commercial fishery.
A more recent publication, Carretta (2024), includes bycatch data
from 1990 through 2023 for the CA thresher shark/swordfish drift
gillnet (>=14 in mesh)/Pacific highly migratory species drift gillnet
fishery. NMFS used M/SI from 2019-2023 from Carretta (2024) for the NID
analyses discussed below.
Estimated M/SI of the Central America/Southern Mexico-CA/OR/WA
stock of humpback whales in the fishery is 0.17 (Carretta 2024) and is
less than NITs (0.68). Estimated M/SI of the Mainland
Mexico-CA/OR/WA stock of humpback whales in the fishery is 0.231
(Carretta 2024) and is less than NITs (1.70). Estimated M/SI
of sperm whales fishery is zero (Carretta 2024) and is less than
NITs (0.523). Since M/SI for all three stocks are less than
their respective NITs thresholds, NMFS determined that the
CA thresher shark/swordfish drift gillnet (>=14 in mesh)/Pacific highly
migratory species drift gillnet fishery has a negligible impact on the
Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA
stocks of humpback whale and the CA/OR/WA stock of sperm whale (see
accompanying MMPA 101(a)(5)(E) evaluation document).
The most recent SARs for 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 include fishery-related M/SI not assigned to a
specific commercial fishery. This unattributed fishery-related M/SI
could be from any number of commercial, recreational, or tribal
fisheries. However, because this fishery is observed (~20 percent
observer coverage) we are confident that any unobserved humpback or
sperm whale M/SI in the CA thresher shark/swordfish drift gillnet (>=14
in mesh)/Pacific highly migratory species drift gillnet fishery is
accounted for in the model-based M/SI estimates for these stocks
(Carretta 2024). Given this, any unattributed fishery-related M/SI that
may be incidental to this specific commercial fishery is already
accounted for, and we did not include unattributed mortality in the
calculations for NID Tier 2 analyses (described above). NMFS is
actively monitoring this fishery through a fishery observer program. If
additional fishery-related M/SI is documented through the observer
program and/or required reporting indicates additional M/SI of the
Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA
stocks of humpback whale or CA/OR/WA stock of sperm whale is occurring,
then NMFS will re-evaluate the NIDs and the permit.
Recovery Plans
A recovery plan for sperm whales has been developed (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/recovery-species-under-endangered-species-act).
A recovery plan for the globally ESA-listed humpback whale species
was developed in 1991. In 2016, NMFS revised the listing status of the
humpback whale under the ESA. The globally listed endangered species
was divided into 14 distinct population segments (DPSs), the species-
level listing was removed, and NMFS listed four DPSs as endangered and
one DPS as threatened (81 FR 62260, September 8, 2016). In June 2022,
NMFS published a recovery outline for the Central America, Mexico, and
Western North Pacific DPSs of humpback whales (https://www.fisheries.noaa.gov/resource/document/recovery-outline-central-america-mexico-and-western-north-pacific-distinct). The recovery
outline serves as an interim guidance document and, with the existing
species-wide recovery plan, directs recovery efforts, including
recovery planning, for the Central America and Mexico DPSs of humpback
whales. These DPSs correspond with the Central America/Southern Mexico-
CA/OR/WA and Mainland Mexico-CA/OR/WA stocks of humpback whales,
respectively. Once finalized, the new recovery plan will replace the
species-wide recovery plan.
Accordingly, the requirement that a recovery plan has been
developed pursuant to the ESA is satisfied.
Take Reduction Plan
MMPA section 118 requires the development and implementation of a
TRP for each strategic stock that interacts with a Category I or II
fishery. The stocks considered for this permit are designated as
strategic stocks under the MMPA because the stocks or a component of
the stocks are listed as threatened species or endangered species under
the ESA (MMPA section 3(19)(C)). A TRP for the CA thresher shark/
swordfish drift gillnet (>=14 in mesh)/Pacific highly migratory species
drift gillnet fishery and the affected marine mammal species or stocks
(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) has been
developed (see Pacific Offshore Cetacean Take Reduction Plan https://www.fisheries.noaa.gov/national/marine-mammal-protection/pacific-offshore-cetacean-take-reduction-plan).
Accordingly, the requirement under MMPA section 118 to have a TRP
in place or in development is satisfied (see determinations supporting
the permit available on the internet at https://www.regulations.gov/docket/NOAA-NMFS-2025-0007).
Monitoring Program
Under MMPA section 118(d), NMFS is to establish a program for
monitoring incidental M/SI of marine mammals from commercial fishing
operations. The CA thresher shark/swordfish drift gillnet (>=14 in
mesh)/Pacific highly migratory species drift gillnet fishery is
monitored by a NMFS fishery observer program. Accordingly, the
requirement under MMPA section 118 to have a monitoring program in
place is satisfied.
[[Page 23917]]
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. NMFS has integrated the MMPA
registration process, implemented through the Marine Mammal
Authorization Program, with existing State and Federal fishery license,
registration, or permit systems for Category I and II fisheries on the
LOF. Therefore, the requirement for vessel registration is satisfied.
Conclusions for Permit
Based on the above evaluation for the CA thresher shark/swordfish
drift gillnet (>=14 in mesh)/Pacific highly migratory species drift
gillnet fishery as it relates to the three requirements of MMPA section
101(a)(5)(E), we are issuing an MMPA 101(a)(5)(E) permit to the CA
thresher shark/swordfish drift gillnet (>=14 in mesh)/Pacific highly
migratory species drift gillnet fishery to authorize the incidental
take of three particular ESA-listed species or stocks during commercial
fishing operations. The permit covers the period from publication of
this notice until December 31, 2027, when the CA thresher shark/
swordfish drift gillnet (>=14 in mesh)/Pacific highly migratory species
drift gillnet fishery will be phased out as mandated by the Driftnet
Modernization and Bycatch Reduction Act of 2022. If, during the
authorization period, there is a significant change in the information
or conditions used to support any of these determinations, NMFS will
re-evaluate whether to amend or modify the authorization, after notice
and opportunity for public comment.
ESA Section 7 and National Environmental Policy Act (NEPA) Requirements
ESA section 7(a)(2) requires Federal agencies to ensure that
actions they authorize, fund, or carry out do not jeopardize the
continued existence of any species listed under the ESA, or destroy or
adversely modify designated critical habitat of any ESA-listed species.
The effects of CA thresher shark/swordfish drift gillnet (>=14 in
mesh)/Pacific highly migratory species drift gillnet fishery on ESA-
listed marine mammals, were analyzed in the appropriate ESA section 7
Biological Opinion on the commercial fishery (see https://repository.library.noaa.gov/view/noaa/51058), and issued incidental
take for those ESA-listed marine mammals for the CA thresher shark/
swordfish drift gillnet (>=14 in mesh)/Pacific highly migratory species
drift gillnet fishery in accordance with the Biological Opinions'
incidental take statement. Under section 7 of the ESA, Biological
Opinions quantify the effects of the proposed action on ESA-listed
species and their critical habitat and, where appropriate, exempt take
of ESA-listed species that is reasonably certain to occur, as specified
in the incidental take statement.
Under MMPA section 101(a)(5)(E), NMFS analyzes previously
documented M/SI incidental to commercial fisheries through the NID
process, and when the necessary findings can be made, issues an MMPA
section 101(a)(5)(E) 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, do not always align.
NEPA requires Federal agencies to evaluate the impacts of
alternatives for their actions on the human environment. Because the
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 Plan 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.
Comments and Responses
On March 14, 2024, NMFS published a notice and request for comments
in the Federal Register for the proposed issuance of a permit under
MMPA section 101(a)(5)(E) (90 FR 12148). The public comment period
closed on April 14, 2025. NMFS received three comment letters opposing
the proposed issuance of a permit to the CA thresher shark/swordfish
drift gillnet (>=14 in mesh)/Pacific highly migratory species drift
gillnet fishery and its underlying preliminary determinations. Only
responses to significant comments pertaining to the proposed permit and
preliminary determinations under MMPA section 101(a)(5)(E) for the CA
thresher shark/swordfish drift gillnet (>=14 in mesh)/Pacific highly
migratory species drift gillnet fishery are addressed below.
Comment 1: Center for Biological Diversity (CBD) comments that the
Driftnet Modernization and Bycatch Reduction Act of 2022 required the
phase-out of the CA drift gillnet fishery within 5 years. They state
that NMFS must not authorize the fishery to incidentally take ESA-
listed species or stocks after December 29, 2027.
Response: NMFS agrees. The Driftnet Modernization and Bycatch
Reduction Act was enacted on December 29, 2022, and it phases out the
use of large mesh drift gillnet gear by December 2027. The permit
issued to the CA thresher shark/swordfish drift gillnet (>=14 in mesh)/
Pacific highly migratory species drift gillnet fishery authorizing the
incidental take of specific ESA-listed marine mammal species or stocks
under the MMPA will expire on December 31, 2027.
Comment 2: CBD states that the 2023 ``Biological Opinion on
Continued Operation of the Large Mesh Drift Gillnet Fishery''
anticipated incidental take of endangered fin whales, and NMFS failed
to analyze if this take of fin whales is negligible under MMPA section
101(a)(5)(E). They assert that issuing an incidental take statement for
fin whales in the Biological Opinion, and not authorizing the take
under the MMPA, violates the ESA and MMPA.
Response: Following NMFS' Procedural Directive 02-238 ``Process for
Distinguishing Serious from Non-Serious Injury of Marine Mammals,''
NMFS evaluated ESA-listed stocks or species included on the final 2024
MMPA LOF (89 FR 12257, February 16, 2024) as killed or seriously
injured in the CA thresher shark/swordfish drift gillnet (>=14 in
mesh)/Pacific highly migratory species drift gillnet fishery. Based on
this evaluation, we proposed 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 (90 FR
12148, March 14, 2025).
Fin whales are not included on the list of marine mammal species/
stocks killed or injured in the Category II CA thresher shark/swordfish
drift gillnet (>=14 in mesh)/Pacific highly migratory species drift
gillnet fishery in the most recent final LOF (2024). In addition, there
has not been an observed fin whale M/SI in the CA thresher shark/
swordfish drift gillnet (>=14 in mesh)/Pacific highly migratory species
drift gillnet fishery since 1999.
Although NMFS predicted that there would be incidental take of one
fin whale in the fishery in the 2023 ``Biological Opinion on Continued
[[Page 23918]]
Operation of the Large Mesh Drift Gillnet Fishery'' over a 5-year
period (NMFS 2023), given there have been no documented fin whale M/SI
in the CA thresher shark/swordfish drift gillnet (>=14 in mesh)/Pacific
highly migratory species drift gillnet fishery since 1999 and the
specific requirements of MMPA 101(a)(5)(E), additional take
authorization under MMPA section 101(a)(5)(E) is not required for the
remaining years the fishery is in operation (until December 31, 2027).
In addition, using M/SI from 2019-2023, estimated M/SI of fin whales
(CA/OR/WA stock) in the CA thresher shark/swordfish drift gillnet (>=14
in mesh)/Pacific highly migratory species drift gillnet fishery is zero
(Carretta 2024). Therefore, the CA thresher shark/swordfish drift
gillnet (>=14 in mesh)/Pacific highly migratory species drift gillnet
fishery has a negligible impact on the CA/OR/WA stock of fin whale.
Comment 3: CBD states that NMFS' proposed MMPA 101(a)(5)(E)
authorization did not use the best available science regarding the
number of large whale entanglements on the West Coast. They note that
the Federal Register notice uses M/SI data from Carretta 2023; however,
a more recent publication provides data through 2024 (Carretta 2024).
CBD further states that the analysis does not reference the 2024 West
Coast large whale entanglement summary. CBD also comments that the NID
for the Central America DPS of humpback whales does not consider
background levels of M/SI occurring from other commercial fisheries.
Response: In this final permit, NMFS updated the NID analyses for
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 using M/
SI data from 2019-2023 in the Carretta (2024) publication (see
accompanying MMPA 101(a)(5)(E) evaluation document). The M/SI estimates
in the CA thresher shark/swordfish drift gillnet (>=14 in mesh)/Pacific
highly migratory species drift gillnet fishery from 2019-2023 (Carretta
2024) were identical to the M/SI estimated reported from 2018-2022
(Carretta 2023). As such, the NIDs remain the same as analyzed in the
proposed permit for the fishery (90 FR 12148, March 14, 2025).
In addition, the West Coast Large Whale Entanglement Summary (NMFS
2025) referenced by CBD published in April 2025 after the proposed MMPA
101(a)(5)(E) permit for the CA thresher shark/swordfish drift gillnet
(>=14 in mesh)/Pacific highly migratory species drift gillnet fishery
published in the Federal Register (90 FR 12148, March 14, 2025). In
2024, there were no confirmed entanglements of humpback whales in CA
drift gillnet gear nor any documented sperm whale entanglements (NMFS
2025). While there was one report of a humpback whale entangled in an
unknown gillnet, we do not have evidence to link this entanglement to
the CA drift gillnet fishery (NMFS 2025).
Comment 4: CBD comments that NMFS is not developing nor has
developed a recovery plan for ESA-listed humpback whale DPSs. They
assert that because NMFS identified 14 humpback whale DPSs in 2016, the
1991 recovery plan is out of date and does not meet the requirements of
MMPA section 101(a)(5)(E). They continue that NMFS cannot rely on the
recovery outline published in June 2022, and that the revised recovery
plan for humpback whales has been postponed indefinitely.
Response: As noted, a recovery plan for the humpback whale species
(global listing) was developed in 1991. In June 2022, NMFS published a
recovery outline for the Central America, Mexico, and Western North
Pacific DPSs of humpback whales (https://www.fisheries.noaa.gov/resource/document/recovery-outline-central-america-mexico-and-western-north-pacific-distinct). This recovery outline serves as an interim
guidance document and, along with the existing species-wide recovery
plan, directs recovery efforts, including recovery planning, for the
Central America (Central America/Southern Mexico-CA/OR/WA stock) and
Mexico (Mainland Mexico-CA/OR/WA stock) DPSs of humpback whales. NMFS
is actively developing a new recovery plan specific to the ESA-listed
DPSs; it has not been postponed indefinitely as CBD purports. Once
finalized, this new recovery plan will replace the species-wide
recovery plan that was published in 1991.
References
Carretta, James V. 2024. Estimates of Marine Mammal, Sea Turtle, and
Seabird Bycatch in the California Large-Mesh Drift Gillnet Fishery:
1990-2023. U.S. Department of Commerce, NOAA Technical Memorandum
NMFS-SWFSC-700. 68 p.
Carretta, James V. 2023. Estimates of Marine Mammal, Sea Turtle, and
Seabird Bycatch in the California Large-Mesh Drift Gillnet Fishery:
1990-2022. U.S. Department of Commerce, NOAA Technical Memorandum
NMFS-SWFSC-687. 67 p.
Carretta, J.W., E.M. Oleson, K.A. Forney, M.M. Muto, D.W. Weller,
A.R. Lang, J. Baker, B. Hanson, A.J. Orr, J. Barlow, J.E. Moore, and
R.L. Brownell. 2023. U.S. Pacific Marine Mammal Stock Assessments:
2022. U.S. Department of Commerce. NOAA Technical Memorandum NMFS-
SWFSC-684. 409 p.
Carretta, J.W., E.M. Oleson, K.A. Forney, A.L. Bradford, K. Yano,
D.W. Weller, A.R. Lang, J. Baker, B. Hanson, A.J. Orr, J.E. Moore,
M. Wallen and R.L. Brownell. 2024. U.S. Pacific Marine Mammal Stock
Assessments: 2023. U.S. Department of Commerce. NOAA Technical
Memorandum NMFS-SWFSC-704. 420 p.
Wild, L.A., Mueter, F.J., Straley, J.M. and Andrews, R.D., 2024.
Movement and Diving Behavior of Satellite-Tagged Male Sperm Whales
in the Gulf of Alaska. Frontiers in Marine Science, 11, p.1394687.
National Marine Fisheries Service (NMFS). 2025. 2024 West Coast
Whale Entanglement Summary. https://www.fisheries.noaa.gov/s3//2025-04/2024-whale-entanglements-report.pdf.
National Marine Fisheries Service (NMFS). 2023. Biological Opinion
on Continued Operation of the Large Mesh Drift Gillnet Fishery. NMFS
Consultation Number: 2023-00435. 204 p. Available online: https://repository.library.noaa.gov/view/noaa/51058.
National Marine Fisheries Service (NMFS). 2020. National Marine
Fisheries Service Procedure 02-204-02: Criteria for Determining
Negligible Impact under MMPA Section 101(a)(5)(E). 20 p. Available
online: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.
Dated: June 2, 2025.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2025-10256 Filed 6-4-25; 8:45 am]
BILLING CODE 3510-22-P
