3840 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

190–199) in the form of periodically 

updated FAQs and other guidance 

materials. On October 1, 2019, PHMSA 

published amendments to 49 CFR parts 

191 and 192 in the Gas Transmission 

final rule (84 FR 52180), which 

addressed several statutory mandates 

from the Pipeline Safety, Regulatory 

Certainty, and Job Creation Act of 2011 

(Pub. L. 112–90). PHMSA finalized the 

first set of FAQs (Batch-1 FAQs) to help 

clarify, explain, and promote better 

understanding of the Gas Transmission 

final rule. The Batch-1 FAQs were 

posted to the docket on September 16, 

2020. 

PHMSA is requesting public comment 

on a second set of draft FAQs (Batch-2 

FAQs) pertaining to the Gas 

Transmission final rule. The Batch-2– 

FAQs are intended to help the public 

understand and implement necessary 

changes in response to PHMSA’s new 

regulations. They are in response to 

specific questions received from the 

regulated community, pipeline safety 

regulators, and the public. Operators 

and state regulators may also request 

written regulatory interpretations from 

PHMSA regarding specific situations in 

accordance with 49 CFR 190.11. 

While FAQs are provided to help the 

public understand how to comply with 

the regulations, they are not substantive 

rules themselves and do not create 

legally enforceable rights, assign duties, 

or impose new obligations not otherwise 

contained in the existing regulations 

and standards. However, an operator 

who is able to demonstrate compliance 

with the FAQs is likely to be able to 

demonstrate compliance with the 

relevant regulations. 

The draft FAQs and other supporting 

documents are available online on the 

Federal eRulemaking Portal, https://

www.regulations.gov; search for Docket 

No. PHMSA–2019–0225. Before 

finalizing the draft FAQs, PHMSA will 

evaluate all comments received on or 

before the comment closing date. 

Comments received after the closing 

date will be evaluated to the extent 

practicable. Once finalized, the FAQs 

will be posted in the docket and on 

PHMSA’s public website at https://

www.phmsa.dot.gov. 

Issued in Washington, DC on December 22, 

2020, under authority delegated in 49 CFR 

1.97. 

Alan K. Mayberry, 

Associate Administrator for Pipeline Safety. 

[FR Doc. 2020–28777 Filed 1–14–21; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 219 

[Docket No. 201020–0275] 

RIN 0648–BJ71 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Southwest Fisheries 

Science Center Fisheries Research 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notification of 

issuance of Letters of Authorization. 

SUMMARY: NMFS’ Office of Protected 

Resources (OPR), upon request from 

NMFS’ Southwest Fisheries Science 

Center (SWFSC), hereby issues 

regulations to govern the unintentional 

taking of marine mammals incidental to 

fisheries research conducted in multiple 

specified geographical regions over the 

course of five years. These regulations, 

which allow for the issuance of Letters 

of Authorization (LOA) for the 

incidental take of marine mammals 

during the described activities and 

specified timeframes, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species or stocks and their habitat, as 

well as requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective from January 15, 2021 

through January 15, 2026. 

ADDRESSES: A copy of SWFSC’s 

application and supporting documents, 

as well as a list of the references cited 

in this document, may be obtained 

online at: www.fisheries.noaa.gov/ 

action/incidental-take-authorizationnoaa-southwest-fisheries-science-centerfisheries-and. In case of problems 

accessing these documents, please call 

the contact listed below. 

FOR FURTHER INFORMATION CONTACT: Ben 

Laws, Office of Protected Resources, 

NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory 

Action 

These regulations establish a 

framework under the authority of the 

MMPA (16 U.S.C. 1361 et seq.) to allow 

for the authorization of take of marine 

mammals incidental to the SWFSC’s 

fisheries research activities in the 

California Current Ecosystem and the 

Antarctic Marine Living Resources 

Ecosystem research areas. 

We received an application from the 

SWFSC requesting five-year regulations 

and authorization to take multiple 

species of marine mammals. Take 

would occur by Level B harassment 

incidental to the use of active acoustic 

devices, as well as by visual disturbance 

of pinnipeds in the Antarctic, and by 

Level A harassment, serious injury, or 

mortality incidental to the use of 

fisheries research gear. Please see 

‘‘Background’’ below for definitions of 

harassment. 

Legal Authority for the Action 

Section 101(a)(5)(A) of the MMPA (16 

U.S.C. 1371(a)(5)(A)) directs the 

Secretary of Commerce to allow, upon 

request, the incidental, but not 

intentional taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region for up to five years 

if, after notice and public comment, the 

agency makes certain findings and 

issues regulations that set forth 

permissible methods of taking pursuant 

to that activity and other means of 

effecting the ‘‘least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat (see the 

discussion below in the Mitigation 

section), as well as monitoring and 

reporting requirements. Section 

101(a)(5)(A) of the MMPA and the 

implementing regulations at 50 CFR part 

216, subpart I provide the legal basis for 

issuing this rule containing five-year 

regulations, and for any subsequent 

LOAs. As directed by this legal 

authority, this rule contains mitigation, 

monitoring, and reporting requirements. 

Summary of Major Provisions Within 

the Regulations 

Following is a summary of the major 

provisions of these regulations regarding 

SWFSC fisheries research activities. 

These measures include: 

• Required monitoring of the 

sampling areas to detect the presence of 

marine mammals before deployment of 

certain research gear; and 

• Required implementation of the 

mitigation strategy known as the ‘‘moveon rule mitigation protocol’’ which 

incorporates best professional judgment, 

when necessary during certain research 

fishing operations. 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3841 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

incidental take authorization may be 

provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of the takings are set forth. 

The definitions of all applicable MMPA 

statutory terms cited above are included 

in the relevant sections below. 

Summary of Request 

On April 30, 2020, we received an 

adequate and complete request from 

SWFSC for authorization to take marine 

mammals incidental to fisheries 

research activities. On May 8, 2020 (85 

FR 27388), we published a notice of 

receipt of SWFSC’s application in the 

Federal Register, requesting comments 

and information related to the SWFSC 

request for thirty days. We did not 

receive any comments in response. We 

published a notice of proposed 

rulemaking in the Federal Register on 

August 28, 2020 (85 FR 53606) and 

requested comments and information 

from the public. Please see Comments 

and Responses, below. 

These regulations are the second 

consecutive five-year incidental take 

regulations issued in response to a 

petition from SWFSC. The initial 

regulations were finalized in 2015 and 

are effective through October 30, 2020 

(80 FR 58982; September 30, 2015). 

Three Letters of Authorization (LOA) 

were issued to SWFSC pursuant to the 

regulations, related to SWFSC research 

survey activities in the California 

Current Ecosystem (CCE), the Eastern 

Tropical Pacific (ETP), and the Antarctic 

Marine Living Resources Ecosystem 

(AMLR). Information related to this 

previous rulemaking and required 

reporting submitted by SWFSC 

according to the terms of the LOAs may 

be found online at: 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-noaafisheries-swfsc-fisheries-and-ecosystemresearch. SWFSC adhered to all 

mitigation, monitoring, and reporting 

requirements and did not exceed 

authorized numbers of take. 

SWFSC conducts fisheries research 

using pelagic trawl gear used at various 

levels in the water column, pelagic 

longlines with multiple hooks, purse 

seine gear, and other gear. If a marine 

mammal interacts with gear deployed 

by SWFSC, the outcome could 

potentially be Level A harassment, 

serious injury (i.e., any injury that will 

likely result in mortality), or mortality. 

However, there is not sufficient 

information upon which to base a 

prediction of what the outcome may be 

for any particular interaction. Therefore, 

SWFSC has pooled the estimated 

number of incidents of take resulting 

from gear interactions, and we have 

assessed the potential impacts 

accordingly. SWFSC also uses various 

active acoustic devices in the conduct of 

fisheries research, and use of these 

devices has the potential to result in 

Level B harassment of marine mammals. 

Level B harassment of pinnipeds hauled 

out on ice may also occur, in the 

Antarctic only, as a result of visual 

disturbance from vessels conducting 

SWFSC research. 

The SWFSC conducts fisheries 

research surveys in the CCE, ETP, and 

the AMLR. However, SWFSC does not 

plan to conduct research over the fiveyear period in the ETP. Therefore, these 

regulations address only the CCE and 

AMLR. In the CCE, SWFSC requested 

authorization to take individuals of 24 

stocks by Level A harassment, serious 

injury, or mortality (hereafter referred to 

as M/SI) and of 38 stocks by Level B 

harassment. In the AMLR, SWFSC 

requested authorization to take 

individuals of fifteen species by Level B 

harassment. No takes by M/SI are 

anticipated in the AMLR. These 

regulations are effective for five years. 

Description of the Specified Activity 

Overview 

The SWFSC collects a wide array of 

information necessary to evaluate the 

status of exploited fishery resources and 

the marine environment. SWFSC 

scientists conduct fishery-independent 

research onboard NOAA-owned and 

operated vessels or on chartered vessels. 

Some surveys may be conducted 

onboard commercial fishing vessels or 

by cooperating scientists on non-NOAA 

vessels, but the SWFSC designs and 

executes the studies and funds vessel 

time. The SWFSC plans to administer 

and conduct approximately 18 survey 

programs over the five-year period, 

within two separate research areas. 

Please see Table 1–2 in SWFSC’s 

application for details relating to the 

planned survey programs. The gear 

types used fall into several categories: 

Towed nets fished at various levels in 

the water column, longline and other 

hook and line gear, purse seine nets, 

and other gear. Only use of trawl nets, 

hook and line gear, and purse seine nets 

are likely to result in interaction with 

marine mammals. Many of these 

surveys also use active acoustic devices. 

The Federal government has a 

responsibility to conserve and protect 

living marine resources in U.S. waters 

and has also entered into a number of 

international agreements and treaties 

related to the management of living 

marine resources in international waters 

outside the United States. NOAA has 

the primary responsibility for managing 

marine finfish and shellfish species and 

their habitats, with that responsibility 

delegated within NOAA to NMFS. 

In order to direct and coordinate the 

collection of scientific information 

needed to make informed fishery 

management decisions, Congress 

created six regional fisheries science 

centers, each a distinct organizational 

entity and the scientific focal point 

within NMFS for region-based Federal 

fisheries-related research. This research 

is aimed at monitoring fish stock 

recruitment, abundance, survival and 

biological rates, geographic distribution 

of species and stocks, ecosystem process 

changes, and marine ecological 

research. The SWFSC is the research 

arm of NMFS in the southwest region of 

the United States. The SWFSC conducts 

research and provides scientific advice 

to manage fisheries and conserve 

protected species in the geographic 

research areas listed above and provides 

scientific information to support the 

Pacific Fishery Management Council 

and numerous other domestic and 

international fisheries management 

organizations. 

Dates and Duration 

The specified activity may occur at 

any time during the five-year period of 

validity of the regulations. Dates and 

duration of individual surveys are 

inherently uncertain, based on 

congressional funding levels for the 

SWFSC, weather conditions, or ship 

contingencies. In addition, cooperative 

research is designed to provide 

3842 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

flexibility on a yearly basis in order to 

address issues as they arise. Some 

cooperative research projects last 

multiple years or may continue with 

modifications. Other projects only last 

one year and are not continued. Most 

cooperative research projects go through 

an annual competitive selection process 

to determine which projects should be 

funded based on proposals developed 

by many independent researchers and 

fishing industry participants. SWFSC 

survey activity does occur during most 

months of the year; however, trawl 

surveys typically occur during May 

through June and September and 

longline surveys are typically completed 

during June–July and September. 

Specified Geographical Region 

The SWFSC conducts research within 

two research areas considered to be 

distinct specified geographical regions: 

The CCE and AMLR. No research 

activity is planned within the ETP over 

the next five years. Please see Figures 1– 

1, 2–1, and 2–2 in the SWFSC 

application for maps of the research 

areas. We note here that, while the 

specified geographical regions within 

which the SWFSC operates may extend 

outside of the U.S. Exclusive Economic 

Zone (EEZ), the MMPA’s authority does 

not extend into foreign territorial 

waters. Detailed descriptions of the 

SWFSC’s research areas were provided 

in the notice of proposed rulemaking for 

SWFSC’s previous incidental take 

regulations (80 FR 8166; February 13, 

2015). Those descriptions remain 

accurate and sufficient, and we refer the 

reader to that notice rather than 

reprinting the information here. 

Detailed Description of Activities 

A detailed description of SWFSC’s 

planned activities was provided in the 

notice of proposed rulemaking (85 FR 

53606; August 28, 2020) and is not 

repeated here. No changes have been 

made to the specified activities 

described therein. 

Comments and Responses 

We published a notice of proposed 

rulemaking in the Federal Register on 

August 28, 2020 (85 FR 53606) and 

requested comments and information 

from the public. During the 30-day 

comment period, we received comments 

from the Marine Mammal Commission 

(Commission) and from 6 private 

citizens. Of the latter, two comments 

expressed general opposition, two 

expressed general support, and two 

were not relevant to the proposed 

rulemaking. The remaining comments 

and our responses are provided here, 

and the comments have been posted 

online at: www.fisheries.noaa.gov/ 

action/incidental-take-authorizationnoaa-southwest-fisheries-science-centerfisheries-and. Please see the 

Commission’s comment letter for full 

rationale behind the Commission’s 

recommendations, to which we respond 

below. In response to the comments, 

minor changes were made to the take 

number for southern elephant seals and 

to certain reporting requirements, as 

detailed below. 

The Commission noted that a 2015 

requirement for SWFSC to report 

whether the move-on rule was waived 

for California sea lions was not included 

in the proposed rule. The Commission 

asserted that this information remains 

relevant (and would apply to purse 

seines in addition to longlines), and that 

it should be included as a requirement 

in the final rule. (See footnote 2 of the 

Commission’s public comment letter.) 

NMFS concurs with this suggestion and 

has included these reporting 

requirements in the final rule. 

Comment—The Commission 

recommends that NMFS ensure that any 

criteria and guidance developed 

regarding de minimis acoustic sources 

consider the overall level of impacts and 

are used consistently across all action 

proponents and applications. 

Response—NMFS concurs with the 

Commission’s recommendation and 

intends to use any such criteria and/or 

guidance consistently. 

Comment—The Commission 

recommends that NMFS require SWFSC 

to estimate the numbers of marine 

mammals that may be taken by Level B 

harassment due to sound exposure 

resulting from use of active acoustic 

sources based on the 120- rather than 

the 160-dB re 1 mPa threshold for nonimpulsive, intermittent sources, 

including those sources whose primary 

operating frequency is above 180 kHz 

that have been shown to elicit 

behavioral responses above the 120-dB 

re 1 mPa threshold. 

Response—NMFS does not concur 

with the Commission’s recommendation 

and does not adopt it. NMFS has 

addressed the Commission’s 

recommendation on numerous 

occasions, and the Commission does not 

offer any substantive new points in 

support of its position. NMFS provided 

a detailed explanation of the reasons 

why the recommendation was not 

followed in response to the 

Commission’s letter pertaining to 

proposed incidental take regulations for 

NMFS’ Alaska Fisheries Science Center 

(84 FR 46788; September 5, 2019). We 

refer the Commission and the public to 

that explanation. 

Comment—The Commission 

recommends that NMFS prioritize 

updating its generic Level B harassment 

thresholds and formulate a strategy for 

developing thresholds for all types of 

sound sources and for incorporating 

new data regarding these thresholds as 

soon as possible. 

Response—NMFS concurs with the 

Commission’s recommendation and 

agrees that this issue is a priority. 

Comment—The Commission 

recommends that NMFS increase the 

annual take by Level B harassment of 

southern elephant seals due to on-ice 

disturbance from one per year to five 

per year in the final rule, in order to 

account for the potential that smaller 

groups could be present. 

Response—NMFS concurs with the 

recommendation and has increased the 

annual take number as suggested. See 

Table 9. 

Comment—The Commission 

recommends that NMFS include in all 

proposed and final incidental 

harassment authorizations and rules, 

including the SWFSC’s final rule, the 

explicit requirement to cease activities if 

a marine mammal is injured or killed by 

vessel strike, until NMFS reviews the 

circumstances involving any injury or 

death that is likely attributable to the 

activities and determines what 

additional measures are necessary to 

minimize additional injuries or deaths. 

Response—NMFS does not anticipate, 

and has not authorized, any takes 

associated with vessel strikes. Further, 

in the event of a vessel strike, SWFSC 

is required both to collect and report an 

extensive suite of information that 

NMFS has identified in order to 

evaluate the event, and to notify OPR 

and the West Coast Regional Stranding 

Coordinator as soon as feasible. At that 

point, as the Commission suggests, 

NMFS would work with SWFSC to 

determine whether there are additional 

mitigation measures or modifications 

that could further reduce the likelihood 

of vessel strike for the activities. 

However, given the very low likelihood 

of a vessel strike occurring, the 

protective value of ceasing operations 

while NMFS and SWFSC discuss 

potential additional mitigations in order 

to avoid a second highly unlikely event 

is unclear, while a requirement for 

project activities to cease would not be 

practicable for a vessel that is operating 

on the open water. Therefore, NMFS 

does not concur that the measure is 

warranted, and we have not included 

this requirement in the authorization. 

NMFS retains authority to modify the 

LOA and cease all activities 

immediately based on a vessel strike 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3843 

and will exercise that authority if 

warranted. 

With respect to the Commission’s 

recommendation that NMFS include 

these requirements in all proposed and 

final incidental take authorizations, 

NMFS determines the requirements for 

mitigation measures in each 

authorization based on numerous casespecific factors, including the 

practicability of the measures for 

applicant implementation, which may 

consider such things as cost, impact on 

operations, and, in the case of a military 

readiness activity, personnel safety, 

practicality of implementation, and 

impact on the effectiveness of the 

military readiness activity. As NMFS 

must make these determinations on a 

case-by-case basis, we therefore do not 

agree with this recommendation. 

Comment—The Commission 

recommends that NMFS (1) include a 

specific condition either in section 

219.5 of the final rule or in any LOA 

issued under the final rule requiring 

SWFSC to cease its activities and 

consult with NMFS if the number of 

authorized takes has been met for any 

species and (2) reinforce that SWFSC 

should keep a running tally of the 

numbers of species-specific M/SI and 

on-ice Level B harassment takes and the 

line-kilometers surveyed to ensure that 

the authorized taking limits are not 

exceeded. 

Response—NMFS does not concur 

with the recommendation and does not 

adopt it. The LOA stipulates that the 

allowable taking is limited to the 

authorized numbers specified in the 

LOA, and states that any taking 

exceeding the authorized numbers (or 

any taking of a species for which take 

is not authorized) is prohibited and may 

result in the modification, suspension, 

or revocation of the LOA. Additional, 

redundant language is not necessary. 

Therefore, while we agree that SWFSC 

must ensure they do not exceed 

authorized takes, we do not agree that 

the recommended requirements are 

helpful. SWFSC is responsible for 

ensuring that it does not operate in 

violation of an issued LOA. 

Comment—The Commission 

recommends that NMFS require SWFSC 

to include in each annual monitoring 

report (1) the distance at which a 

pinniped is disturbed and the closest 

point of approach for each disturbance 

event; (2) the numbers of takes 

differentiated by species and age class 

for each disturbance event; and (3) the 

raw sightings data in each annual 

monitoring report. 

Response—NMFS concurs with the 

recommendation and has included the 

suggested reporting requirements in the 

final rule. See § 219.6(e)(2)(ii)(D) of the 

final regulations. 

Comment—Regarding the negligible 

impact analysis provided for the 

California coastal stock of bottlenose 

dolphin, the Commission states that 

NMFS should apply the information 

contained in the current stock 

assessment reports when making 

negligible impact determinations unless 

reliable, relevant new information that 

has yet to be fully assessed and 

incorporated into the reports warrants 

some other treatment, and additionally 

recommends that NMFS authorize a 

smaller number of takes by M/SI than 

proposed, such that total estimated M/ 

SI does not exceed the potential 

biological removal (PBR) value. 

Response—NMFS does not concur 

with the Commission’s recommendation 

to reduce the authorized take number 

for the California coastal stock of 

bottlenose dolphin, or the underlying 

rationale, and does not adopt it. We also 

clarify that the proposed annual take 

number for the stock (0.8) does not 

exceed the PBR value of 2.7. The annual 

take number does exceed the residual 

PBR value of 0.7. (See Table 1, Table 9, 

and Negligible Impact Analysis and 

Determinations for details of the 

analysis.) The Commission suggests first 

that application of NMFS’ new criteria 

for negligible impact determinations 

(NID) under section 101(a)(5)(E) of the 

MMPA (NMFS, 2020) would show the 

proposed authorized take number to not 

be negligible, and that NMFS should 

explain its rationale if it believes that 

the criteria are not relevant when 

assessing M/SI that occurs in contexts 

other than commercial fishing. Indeed, 

application of those criteria to NIDs 

made under section 101(a)(5)(A) of the 

MMPA may not be appropriate. Section 

101(a)(5)(E) only pertains to marine 

mammal stocks designated as depleted 

because of their listing under the ESA, 

and the corresponding criteria were 

developed in that context. The 

California coastal stock of bottlenose 

dolphin is not designated as a depleted 

stock. NMFS has made no decisions on 

whether and how to apply the 

101(a)(5)(E) criteria to other negligible 

impact determinations under section 

101(a)(5)(A). Therefore, the appropriate 

negligible impact factor may be different 

than those specified in the 101(a)(5)(E) 

criteria. Applicability of those criteria to 

stocks not designated as depleted was 

not considered in development of the 

criteria and is not addressed by the 

Commission. Therefore, we reject the 

suggestion that the criteria may be used 

to show deficiency in NMFS’ NID for 

the California coastal stock of bottlenose 

dolphin. Please see the discussion of 

use of PBR generally for section 

101(a)(5)(A) authorizations below in the 

Negligible Impact Analysis and 

Determinations section. 

With regard to the Commission’s 

recommendation to apply the 

information contained in the current 

stock assessment reports, NMFS agrees 

and has done so, as shown in the 

Negligible Impact Analysis and 

Determinations section of this preamble. 

In addition to considering quantitative 

information, i.e., the estimate of annual 

M/SI and the stock’s PBR value, we also 

consider other relevant factors 

discussed in the stock assessment report 

(SAR), such as the nature of the 

recorded M/SI events that contribute to 

the estimate and the information that is 

available regarding stock abundance. 

NMFS disagrees with the Commission’s 

characterization of the discussion of 

these factors as ‘‘downplaying’’ the 

information in the SAR and notes the 

Commission’s apparent agreement with 

the validity of these points, i.e., that the 

stock abundance is likely negatively 

biased and that some of the specific 

incidents contributing to the SAR 

estimate of annual M/SI are unlikely to 

recur. It is appropriate to perform a 

negligible impact analysis by 

considering the quantitative information 

available in the SAR in context with 

other, qualitative information. Although 

not currently applicable to 101(a)(5)(A) 

NID evaluations, the 101(a)(5)(E) criteria 

explicitly address this, stating ‘‘There 

may be circumstances, such as when the 

M/SI estimate is slightly below or 

slightly above the negligible impact 

threshold(s), where the analyst may 

deviate from the determination that 

would be dictated by strictly adhering to 

the [negligible impact] thresholds. Such 

deviations may be due to the 

consideration of additional factors 

affecting the likelihood or impact of the 

incidental M/SI [. . . .] In such 

circumstances, NMFS should provide 

the rationale in the document 

supporting the NID.’’ In this case, NMFS 

has described the available quantitative 

information, evaluated additional 

relevant information, and provided its 

rationale in making a finding of 

negligible impact. 

Finally, the Commission does not 

suggest that the level of taking proposed 

for authorization is unrealistically high 

but, nevertheless, recommends that it be 

reduced in order to, in the 

Commission’s estimation, make a 

finding of negligible impact. It would be 

improper to lower arbitrarily NMFS’ 

best estimate of anticipated taking in 

order to make the necessary finding. 

Rather, that best estimate must be 

evaluated in context of all relevant 

3844 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

available information and, if the 

estimated taking is found to be likely to 

cause greater than a negligible impact 

on the affected species or stock, 

additional mitigation that may reduce 

the amount of anticipated taking may be 

considered. In this case, NMFS has 

considered the amount of anticipated 

taking in context of all relevant 

available information and has made the 

necessary finding of negligible impact. 

Description of Marine Mammals in the 

Area of the Specified Activity 

We have reviewed SWFSC’s species 

descriptions—which summarize 

available information regarding status 

and trends, distribution and habitat 

preferences, behavior and life history, 

and auditory capabilities of the 

potentially affected species—for 

accuracy and completeness and refer the 

reader to Sections 3 and 4 of SWFSC’s 

application, instead of reprinting the 

information here. Additional 

information regarding population trends 

and threats may be found in NMFS’ 

SARs (www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments), and more 

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’ 

website (www.fisheries.noaa.gov/findspecies). 

Table 1 lists all species with expected 

potential for occurrence in the specified 

geographical regions where SWFSC 

plans to continue the specified activities 

and summarizes information related to 

the population or stock, including 

regulatory status under the MMPA and 

ESA and PBR, where known. For 

taxonomy, we follow Committee on 

Taxonomy (2020). PBR, defined by the 

MMPA as the maximum number of 

animals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 

optimum sustainable population, is 

discussed in greater detail later in this 

document (see Negligible Impact 

Analysis and Determinations). 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’s stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that the stock comprises. For 

some species, this geographic area may 

extend beyond U.S. waters. Survey 

abundance (as compared to stock or 

species abundance) is the total number 

of individuals estimated within the 

survey area, which may or may not align 

completely with a stock’s geographic 

range as defined in the SARs. These 

surveys may also extend beyond U.S. 

waters. 

All stocks occurring in the CCE are 

assessed in either NMFS’ U.S. Alaska 

SARs or U.S. Pacific SARs. All values 

presented in Table 1 are the most recent 

available at the time of writing and are 

available in the 2019 SARs (Carretta et 

al., 2020; Muto et al., 2020). Antarctic 

stocks are not generally defined by 

NMFS, and information relating to 

species occurring in the AMLR is 

lacking relative to those occurring in the 

CCE. For species occurring in AMLR, 

we provide International Union for the 

Conservation of Nature (IUCN) status. 

The IUCN systematically assesses the 

relative risk of extinction for terrestrial 

and aquatic plant and animal species 

via a classification scheme using five 

designations, including three threatened 

categories (Critically Endangered, 

Endangered, and Vulnerable) and two 

non-threatened categories (Near 

Threatened and Least Concern) 

(www.iucnredlist.org/; accessed June 22, 

2020). These assessments are generally 

made relative to the species’ global 

status, and therefore may have limited 

applicability when marine mammal 

stocks are defined because we analyze 

the potential population-level effects of 

the specified activity to the relevant 

stock. However, where stocks are not 

defined, IUCN status can provide a 

useful reference. 

California Current 

In the CCE, 33 species (with 40 

managed stocks) are considered to have 

the potential to co-occur with SWFSC 

activities. Species that could potentially 

occur in the research area but are not 

expected to have the potential for 

interaction with SWFSC research gear or 

that are not likely to be harassed by 

SWFSC’s use of active acoustic devices 

are described briefly but omitted from 

further analysis. These include 

extralimital species, which are species 

that do not normally occur in a given 

area but for which there are one or more 

occurrence records that are considered 

beyond the normal range of the species. 

Species considered to be extralimital 

here include the North Pacific right 

whale (Eubalaena japonica) and the 

Bryde’s whale (Balaenoptera edeni 

brydei). In addition, the sea otter is 

found in coastal waters, with the 

southern sea otter (Enhydra lutris 

nereis) found in California and the 

northern (or eastern) sea otter (E. l. 

kenyoni; Washington stock only) found 

in Washington. However, sea otters are 

managed by the U.S. Fish and Wildlife 

Service and are not considered further 

in this document. Most survey activity 

occurs offshore and is therefore less 

likely to interact with coastal species 

such as harbor porpoise, the coastal 

stock of bottlenose dolphin, or gray 

whales (during the northbound 

migration), although these species are 

considered further in this document. 

SWFSC does not conduct research 

activities in the inland waters of 

Washington. Therefore, stocks occurring 

solely in those waters (i.e., harbor 

porpoise and harbor seal) are not 

addressed herein. 

TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF SWFSC RESEARCH ACTIVITIES IN THE CCE 

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock 

abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Eschrichtiidae: 

Gray whale ......................... Eschrichtius robustus ................ Eastern North Pacific (ENP) ..... -; N 26,960 (0.05; 25,849; 

2016).

801 139 

Family Balaenopteridae 

(rorquals): 

Humpback whale ................ Megaptera novaeangliae kuzira California/Oregon/Washington 

(CA/OR/WA).

E/D; Y 2,900 (0.05; 2,784; 2014) 9 16.7 ≥42.1 

Minke whale ........................ Balaenoptera acutorostrata 

scammoni.

CA/OR/WA ................................ -; N 636 (0.72; 369; 2014) ..... 3.5 ≥1.3 

Sei whale ............................ B. borealis borealis ................... ENP ........................................... E/D; Y 519 (0.4; 374; 2014) ....... 0.75 ≥0.2 

Fin whale ............................ B. physalus physalus ................ CA/OR/WA ................................ E/D; Y 9,029 (0.12; 8,127; 2014) 81 ≥43.5 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3845 

TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF SWFSC RESEARCH ACTIVITIES IN THE CCE— 

Continued 

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock 

abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Blue whale .......................... B. musculus musculus .............. ENP ........................................... E/D; Y 1,496 (0.44; 1,050; 2014) 9 1.2 ≥19.4 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Sperm whale ....................... Physeter macrocephalus .......... CA/OR/WA ................................ E/D; Y 1,997 (0.57; 1,270; 2014) 2.5 0.6 

Family Kogiidae: 

Pygmy sperm whale ........... Kogia breviceps ........................ CA/OR/WA ................................ -; N 4,111 (1.12; 1,924; 2014) 19.2 0 

Dwarf sperm whale ............. K. sima ...................................... CA/OR/WA5 .............................. -; N Unknown ......................... n/a 0 

Family Ziphiidae (beaked 

whales): 

Cuvier’s beaked whale ....... Ziphius cavirostris ..................... CA/OR/WA ................................ -; N 3,274 (0.67; 2,059; 2014) 21 <0.1 

Baird’s beaked whale ......... Berardius bairdii ........................ CA/OR/WA ................................ -; N 2,697 (0.6; 1,633; 2014) 16 0 

Hubbs’ beaked whale ......... Mesoplodon carlhubbsi ............. CA/OR/WA6 .............................. -; N 3,044 (0.54; 1,967; 2014) 20 0.1 

Blainville’s beaked whale ... M. densirostris ..........................

Ginkgo-toothed beaked 

whale.

M. ginkgodens ..........................

Perrin’s beaked whale ........ M. perrini ...................................

Lesser (pygmy) beaked 

whale.

M. peruvianus ...........................

Stejneger’s beaked whale .. M. stejnegeri .............................

Family Delphinidae: 

Common bottlenose dolphin Tursiops truncatus truncatus .... CA/OR/WA Offshore .................

California Coastal .....................

-; N 

-; N 

1,924 (0.54; 1,255; 2014) 

453 (0.06; 346; 2011) .....

11 

2.7 

≥1.6 

≥2.0 

Striped dolphin .................... Stenella coeruleoalba ............... CA/OR/WA ................................ -; N 29,211 (0.2; 24,782; 

2014).

238 ≥0.8 

ENP long-beaked common 

dolphin.

Delphinus delphis bairdii ........... California ................................... -; N 101,305 (0.49; 68,432; 

2014).

657 ≥35.4 

Common dolphin ................ D. d. delphis .............................. CA/OR/WA ................................ -; N 969,861 (0.17; 839,325; 

2014).

8,393 ≥40 

Pacific white-sided dolphin Lagenorhynchus obliquidens .... CA/OR/WA ................................ -; N 26,814 (0.28; 21,195; 

2014).

191 7.5 

Northern right whale dolphin Lissodelphis borealis ................ CA/OR/WA ................................ -; N 26,556 (0.44; 18,608; 

2014).

179 3.8 

Risso’s dolphin ................... Grampus griseus ...................... CA/OR/WA ................................ -; N 6,336 (0.32; 4,817; 2014) 46 ≥3.7 

Killer whale ......................... Orcinus orca 4 ........................... West Coast Transient 7 .............

ENP Offshore ............................

ENP Southern Resident ...........

-; N 

-;N 

E/D; Y 

243 (n/a; 2009) ...............

300 (0.1; 276; 2012) .......

75 (n/a; 2018) .................

2.4 

2.8 

0.13 

0 

0 

0 

Short-finned pilot whale ...... Globicephala macrorhynchus ... CA/OR/WA ................................ -; N 836 (0.79; 466; 2014) ..... 4.5 1.2 

Family Phocoenidae (porpoises): 

Harbor porpoise .................. Phocoena phocoena vomerina Morro Bay ................................. -; N 4,255 (0.56; 2,737; 2012) 66 ≥0.4 

Monterey Bay ............................ -; N 3,455 (0.58; 2,197; 2013) 23 ≥0.2 

San Francisco-Russian River ... -; N 7,524 (0.57; 4,801; 2017) 48 ≥0.6 

Northern CA/Southern OR ........ -; N 24,195 (0.4; 17,447; 

2016).

349 ≥0.2 

Northern OR/WA Coast ............ -; N 21,487 (0.44; 15,123; 

2011).

151 ≥3 

Dall’s porpoise .................... Phocoenoides dalli dalli ............ CA/OR/WA ................................ -; N 25,750 (0.45; 17,954; 

2014).

172 0.3 

Order Carnivora—Superfamily Pinnipedia 

Family Otariidae (eared seals 

and sea lions): 

Guadalupe fur seal ............. Arctocephalus philippii 

townsendi.

Mexico to California .................. T/D; Y 34,187 (n/a; 31,019; 

2013).

1,062 10 ≥3.8 

Northern fur seal ................. Callorhinus ursinus ................... Pribilof Islands/Eastern Pacific D; Y 620,660 (0.2; 525,333; 

2016).

11,295 399 

California ............................. ................................................... ................................................... -; N 14,050 (n/a; 7,524; 2013) 451 1.8 

California sea lion ............... Zalophus californianus .............. United States ............................ -; N 257,606 (n/a; 233,515; 

2014).

14,011 ≥321 

Steller sea lion .................... Eumetopias jubatus 

monteriensis.

Eastern U.S. ............................. -; N 43,201 (n/a; 2017) .......... 2,592 112 

Family Phocidae (earless seals): 

Harbor seal ......................... Phoca vitulina richardii .............. California ................................... -; N 30,968 (n/a; 27,348; 

2012).

1,641 43 

OR/WA Coast 8 ......................... -; N 24,732 (0.12; 22,380; 

1999).

n/a 10.6 

Northern elephant seal ....... Mirounga angustirostris ............ California Breeding ................... -; N 179,000 (n/a; 81,368; 

2010).

4,882 8.8 

1Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the 

ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or 

which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically 

designated under the MMPA as depleted and as a strategic stock. 

3846 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

2 NMFS marine mammal stock assessment reports at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For most stocks of killer whales, the abundance values represent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated CV. For certain stocks of pinnipeds, 

abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge of the species’ (or 

similar species’) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore. 3These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are 

as presented in the 2019 SARs. 4Transient and resident killer whales are considered unnamed subspecies (Committee on Taxonomy, 2020). 

5 No information is available to estimate the population size of dwarf sperm whales off the U.S. West Coast, as no sightings of this species have been documented 

despite numerous vessel surveys of this region (Carretta et al., 2017). Dwarf and pygmy sperm whales are difficult to differentiate at sea but, based on previous sighting surveys and historical stranding data, it is thought that recent ship survey sightings were of pygmy sperm whales. 6The six species of Mesoplodont beaked whales occurring in the CA/OR/WA region are managed as a single stock due to the rarity of records and the difficulty in 

distinguishing these animals to species in the field. Based on bycatch and stranding records, it appears that M. carlhubbsi is the most commonly encountered of 

these species (Carretta et al., 2008; Moore and Barlow, 2013). 7The abundance estimate for this stock includes only animals from the ‘‘inner coast’’ population occurring in inside waters of southeastern Alaska, British Columbia, 

and Washington—excluding animals from the ‘‘outer coast’’ subpopulation, including animals from California—and therefore should be considered a minimum count. 

For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now considered outdated, was 354. 8Abundance estimate for this stock is not considered current. PBR is therefore considered undetermined, as there is no current minimum abundance estimate for 

use in calculation. We nevertheless present the most recent abundance estimates, as it represents the best available information for use in this document. 9These stocks are known to spend a portion of their time outside the U.S. EEZ. Therefore, the PBR presented here is the allocation for U.S. waters only and is a 

portion of the total. The total PBR for blue whales is 2.1 (7⁄12 allocation for U.S. waters), and the total for CA/OR/WA humpback whales is 33.4 (one half allocation for 

U.S. waters). Annual M/SI presented for these species is for U.S. waters only. 10This represents annual M/SI in U.S. waters. However, the vast majority of M/SI for this stock—the level of which is unknown—would likely occur in Mexican 

waters. There is insufficient information to determine whether mortality in Mexico exceeds the PBR for this stock, but given the observed growth of the population 

over time, this is unlikely (Carretta et al., 2020). 

Prior to 2016, humpback whales were 

listed under the ESA as an endangered 

species worldwide. Following a 2015 

global status review (Bettridge et al., 

2015), NMFS established 14 distinct 

population segments (DPS) with 

different listing statuses (81 FR 62259; 

September 8, 2016) pursuant to the ESA. 

The DPSs that occur in U.S. waters do 

not necessarily equate to the existing 

stocks designated under the MMPA and 

shown in Table 1. Because MMPA 

stocks cannot be portioned, i.e., parts 

managed as ESA-listed while other parts 

managed as not ESA-listed, until such 

time as the MMPA stock delineations 

are reviewed in light of the DPS 

designations, NMFS considers the 

existing humpback whale stocks under 

the MMPA to be endangered and 

depleted for MMPA management 

purposes (e.g., selection of a recovery 

factor, stock status). 

Within U.S. West Coast waters, three 

current DPSs may occur: The Hawaii 

DPS (not listed), Mexico DPS 

(threatened), and Central America DPS 

(endangered). According to Wade et al. 

(2016), whales off of Washington are 

most likely to be from the Hawaii DPS 

(52.9 percent), but are almost equally 

likely to be from the Mexico DPS (41.9 

percent), and could also be from the 

Central America DPS (14.7 percent). Off 

of Oregon and California, whales are 

most likely to be from the Mexico DPS 

(89.6 percent), with a 19.7 percent 

probability of an encountered whale 

being from the Central America DPS. 

Note that these probabilities reflect the 

upper limit of the 95 percent confidence 

interval of the probability of occurrence; 

therefore, numbers may not sum to 100 

percent for a given area. 

Take Reduction Planning—Take 

reduction plans are designed to help 

recover and prevent the depletion of 

strategic marine mammal stocks that 

interact with certain U.S. commercial 

fisheries, as required by Section 118 of 

the MMPA. The immediate goal of a 

take reduction plan is to reduce, within 

six months of its implementation, the 

M/SI of marine mammals incidental to 

commercial fishing to less than the PBR 

level. The long-term goal is to reduce, 

within five years of its implementation, 

the M/SI of marine mammals incidental 

to commercial fishing to insignificant 

levels, approaching a zero serious injury 

and mortality rate, taking into account 

the economics of the fishery, the 

availability of existing technology, and 

existing state or regional fishery 

management plans. Take reduction 

teams are convened to develop these 

plans. 

For marine mammals in the CCE, 

there is currently one take reduction 

plan in effect (Pacific Offshore Cetacean 

Take Reduction Plan). The goal of this 

plan is to reduce M/SI of several marine 

mammal stocks incidental to the 

California thresher shark/swordfish drift 

gillnet fishery (CA DGN). A team was 

convened in 1996 and a final plan 

produced in 1997 (62 FR 51805; October 

3, 1997). Marine mammal stocks of 

concern initially included the 

California, Oregon, and Washington 

stocks for all CCE beaked whales, shortfinned pilot whales, pygmy sperm 

whales, sperm whales, and humpback 

whales. The most recent five-year 

averages of M/SI for all stocks except 

the humpback whale are below PBR. For 

humpback whales, the majority of total 

annual M/SI is attributed to other 

fisheries—notably pot/trap fisheries— 

and ship strikes, with no observed M/ 

SI in the DGN fishery from 2013–2017, 

and estimated mean annual M/SI in the 

fishery at <0.1 (CV = 1.9) over the same 

period. The most recent observed take of 

a sperm whale in the DGN fishery was 

in 2010, though the mean annual 

estimated M/SI attributed to the fishery 

over the period from 2008–2017 is 0.56 

(CV = 0.78). Two short-finned pilot 

whales were observed taken in the DGN 

fishery in 2014, leading to a mean 

annual M/SI estimate of 1.2 (CV = 0.39) 

for the fishery. None of the other species 

were observed taken in the fishery in 

the most recent five-year period for 

which data are available, though some 

have estimated mean annual M/SI 

values for the fishery that are >0. More 

information is available online at: 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/pacificoffshore-cetacean-take-reduction-plan. 

Of the stocks of concern, the SWFSC has 

requested the authorization of 

incidental M/SI for the short-finned 

pilot whale only (see ‘‘Estimated Take 

by Incidental Harassment’’ later in this 

document). The SWFSC does not use 

drift gillnets in its fisheries research 

program; therefore, take reduction 

measures applicable to the CA DGN 

fisheries are not relevant to the SWFSC. 

Unusual Mortality Events (UME)—A 

UME is defined under the MMPA as a 

stranding that is unexpected; involves a 

significant die-off of any marine 

mammal population; and demands 

immediate response. From 1991 to the 

present, there have been 16 formally 

recognized UMEs on the U.S. West 

Coast involving species under NMFS’ 

jurisdiction. The only currently ongoing 

investigations involve Guadalupe fur 

seals and gray whales along the west 

coast. 

Increased strandings of Guadalupe fur 

seals (up to eight times the historical 

average) have occurred along the entire 

coast of California and extending into 

Oregon and Washington. Increased 

strandings in California were reported 

beginning in January 2015 and peaked 

from April through June 2015, but have 

remained well above average. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3847 

Strandings in Oregon and Washington 

became elevated starting in 2019 and are 

five times higher than the historical 

average. Findings from the majority of 

stranded animals include malnutrition 

with secondary bacterial and parasitic 

infections, and the UME has been 

attributed to ecological factors. For more 

information, please visit: 

www.fisheries.noaa.gov/national/ 

marine-life-distress/2015-2020- 

guadalupe-fur-seal-unusual-mortalityevent-california. 

Since January 1, 2019, elevated gray 

whale strandings have occurred along 

the west coast of North America from 

Mexico through Alaska. As of 

September 2, 2020, there have been a 

total of 378 whales reported in the 

event, with approximately 168 dead 

whales in Mexico, 194 whales in the 

United States (53 in California; 9 in 

Oregon; 46 in Washington, 86 in 

Alaska), and 16 whales in British 

Columbia, Canada. For the United 

States, the historical 18-year 5-month 

average (Jan–May) is 14.8 whales for the 

four states for this same time-period. 

Several dead whales have been 

emaciated with moderate to heavy 

whale lice (cyamid) loads. Necropsies 

have been conducted on a subset of 

whales with additional findings of 

vessel strike in three whales and 

entanglement in one whale. In Mexico, 

50–55 percent of the free-ranging whales 

observed in the lagoons in winter have 

been reported as ‘‘skinny’’ compared to 

the annual average of 10–12 percent 

‘‘skinny’’ whales normally seen. The 

cause of the UME is as yet 

undetermined. For more information, 

please visit: www.fisheries.noaa.gov/ 

national/marine-life-distress/2019-2020- 

gray-whale-unusual-mortality-eventalong-west-coast-and. 

Additional UMEs in the past ten years 

include those involving California sea 

lions (2013–2016; ecological factors) 

and large whales in Alaska and British 

Columbia (2015–2016; undetermined 

cause with secondary ecological 

factors). For more information on UMEs, 

please visit: www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-unusual-mortalityevents. 

Antarctic 

The SWFSC’s Antarctic Research Area 

(ARA) comprises a portion of the AMLR 

ecosystem. In the ARA, seventeen 

species are considered to have the 

potential to co-occur with SWFSC 

activities. Marine mammals in the 

AMLR do not constitute stocks under 

U.S. jurisdiction; therefore, the stocks 

are not managed by NMFS, there are no 

SARs, and substantially less information 

is available for these species in relation 

to the stocks or populations and their 

occurrence in the ARA than is available 

for CCE stocks (e.g., PBR is not 

calculated for AMLR stocks, and 

strategic designations are not made). 

Extralimital species in the ARA include 

the pygmy right whale (Caperea 

marginata), sei whale, Cuvier’s beaked 

whale, Shepherd’s beaked whale 

(Tasmacetus shepherdi), Gray’s beaked 

whale (Mesoplodon grayi), and straptoothed beaked whale (M. layardii), 

which have distributions that only 

border the northernmost edge of the 

ARA. The Ross seal (Ommatophoca 

rossii) is also considered extralimital to 

the ARA due to its preference for dense 

pack ice, which is not typically present 

in the ARA. 

TABLE 2—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF SWFSC RESEARCH ACTIVITIES IN THE AMLR 

Common name Scientific name Stock 2 ESA/MMPA/IUCN 

status 3

Abundance 

(CV) 4

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Balaenidae (right whales): 

Southern right whale .................... Eubalaena australis ............................ ..................................... E/D/LC 1,755 (0.62).5

Family Balaenopteridae (rorquals): 

Humpback whale ......................... Megaptera novaeangliae australis ..... ..................................... E/D/LC 9,484 (0.28).5

Antarctic minke whale .................. Balaenoptera bonaerensis .................. ..................................... -/NT 18,125 (0.28).5

Fin whale ..................................... B. physalus quoyi ............................... ..................................... E/D/VU 4,672 (0.42).5

Blue whale ................................... B. musculus intermedia ...................... ..................................... E/D/EN 1,700 (95% CI 860–2,900).6

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Sperm whale ................................ Physeter macrocephalus .................... ..................................... E/D/VU 12,069 (0.17).7

Family Ziphiidae (beaked whales): 

Arnoux’ beaked whale ................. Berardius arnuxii ................................. ..................................... -/DD Unknown. 

Southern bottlenose whale .......... Hyperoodon planifrons ....................... ..................................... -/LC 53,743 (0.12).8

Family Delphinidae: 

Hourglass dolphin ........................ Lagenorhynchus cruciger ................... ..................................... -/LC 144,300 (0.17).9

Killer whale .................................. Orcinus orca 1 ..................................... ..................................... -/DD 24,790 (0.23).8

Long-finned pilot whale ................ Globicephala melas edwardii ............. ..................................... -/LC 200,000 (0.35).9

Family Phocoenidae (porpoises): 

Spectacled porpoise .................... Phocoena dioptrica ............................. ..................................... -/LC Unknown. 

Order Carnivora—Superfamily Pinnipedia 

Family Otariidae (eared seals and sea 

lions): 

Antarctic fur seal .......................... Arctocephalus gazella ........................ South Georgia ............ -/LC 2,700,000.10

Family Phocidae (earless seals): 

Southern elephant seal ................ Mirounga leonina ................................ South Georgia ............ -/LC 401,572.11

Weddell seal ................................ Leptonychotes weddellii ..................... ..................................... -/LC 500,000–1,000,000.12

Crabeater seal ............................. Lobodon carcinophaga ....................... ..................................... -/LC 5,000,000–10,000,000.12

Leopard seal ................................ Hydrurga leptonyx .............................. ..................................... -/LC 222,000–440,000.12

1Three distinct forms of killer whale have been described from Antarctic waters; referred to as types A, B, and C, they are purported prey specialists on Antarctic 

minke whales, seals, and fish, respectively (Pitman and Ensor, 2003; Pitman et al., 2010). 2For most species in the AMLR, stocks are not delineated and entries refer generally to individuals of the species occurring in the research area. 3Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the 

ESA or designated as depleted under the MMPA. Any species listed under the ESA is automatically designated under the MMPA as depleted. IUCN status: Endangered (EN), Vulnerable (VU), Near Threatened (NT), Least Concern (LC), Data Deficient (DD). 4 CV is coefficient of variation. All abundance estimates, except for those from Reilly et al. (2004) (right, humpback, minke, and fin whales), are for entire Southern 

Ocean (i.e., waters south of 60°S) and not the smaller area comprising the SWFSC research area. 

3848 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

5Abundance estimates reported in Reilly et al. (2004) for the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) survey area from 

2000. Surveys include Antarctic Peninsula (473,300 km2) and Scotia Sea (1,109,800 km2) strata, which correspond roughly to ARA, as reported by Hewitt et al. 

(2004). 6Southern Ocean abundance estimate (Branch et al., 2007). CI is confidence interval. 7Southern Ocean abundance estimate (IWC, 2001 in Whitehead, 2002). 

8Southern Ocean abundance estimate from circumpolar surveys covering 68 percent of waters south of 60°S from 1991–98 (Branch and Butterworth, 2001). 9Southern Ocean abundance estimate derived from surveys conducted from 1976–88 (Kasamatsu and Joyce, 1995). 

10South Georgia abundance estimate; likely >95 percent of range-wide abundance (Forcada and Staniland, 2009). Genetic evidence shows two distinct population 

regions, likely descended from surviving post-sealing populations at South Georgia, Bouvet<ya, and Kerguelen Islands (Wynen et al., 2000; Forcada and Staniland, 

2009). Individuals from the South Georgia population (including breeding populations at the South Orkney and South Shetland Islands, which are within the ARA) are 

likely to occur in the ARA. 11Four genetically distinct populations are recognized: The Peninsula Valde ́s population in Argentina, the South Georgia population in the South Atlantic Ocean, the 

Kerguelen population in the South Indian Ocean and the Macquarie population in the South Pacific Ocean (Slade et al., 1998; Hoelzel et al., 2001). Animals occurring 

in ARA are likely to belong to South Georgia population, which includes subpopulations at South Georgia Island (>99% of population) and at the South Orkney and 

South Shetland Islands; South Georgia population abundance estimate from 2001 (McMahon et al., 2005). 12 Range-wide abundance estimates (Thomas and Terhune, 2009; Bengtson, 2009; Rogers, 2009). 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Current data indicate 

that not all marine mammal species 

have equal hearing capabilities (e.g., 

Richardson et al., 1995; Wartzok and 

Ketten, 1999; Au and Hastings, 2008). 

To reflect this, Southall et al. (2007) 

recommended that marine mammals be 

divided into functional hearing groups 

based on directly measured or estimated 

hearing ranges on the basis of available 

behavioral response data, audiograms 

derived using auditory evoked potential 

techniques, anatomical modeling, and 

other data. Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). 

Subsequently, NMFS (2018) described 

generalized hearing ranges for these 

marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65 dB 

threshold from the normalized 

composite audiograms, with an 

exception for lower limits for lowfrequency cetaceans where the result 

was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 3. 

TABLE 3—MARINE MAMMAL HEARING GROUPS

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans (baleen whales) ................................................................................................................. 7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ...................................... 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) .............................................................................................................. 50 Hz to 86 kHz. 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .......................................................................................... 60 Hz to 39 kHz. 

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ 

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). 

For more detail concerning these 

groups and associated frequency ranges, 

please see NMFS (2018) for a review of 

available information. Within the CCE, 

33 marine mammal species (27 cetacean 

and six pinniped [four otariid and two 

phocid] species) have the potential to 

co-occur with SWFSC research 

activities. Please refer to Table 1. Of the 

27 cetacean species that may be present, 

six are classified as low-frequency 

cetaceans (i.e., all mysticete species), 

seventeen are classified as midfrequency cetaceans (i.e., all delphinid 

and ziphiid species and the sperm 

whale), and four are classified as highfrequency cetaceans (i.e., porpoises and 

Kogia spp.). Within the AMLR, 

seventeen marine mammal species 

(twelve cetacean and five pinniped [one 

otariid and four phocid] species) have 

the potential to co-occur with SWFSC 

research activities. Please refer to Table 

2. Of the twelve cetacean species that 

may be present, five are classified as 

low-frequency cetaceans (i.e., all 

mysticete species), five are classified as 

mid-frequency cetaceans (i.e., all 

delphinid and ziphiid species 

[excluding the hourglass dolphin] and 

the sperm whale), and two are classified 

as high-frequency cetaceans (i.e., the 

hourglass dolphin and spectacled 

porpoise). 

Potential Effects of the Specified 

Activity on Marine Mammals and Their 

Habitat 

Detailed descriptions of the potential 

effects of the various elements of the 

SWFSC’s specified activity on marine 

mammals and their habitat were 

provided in association with the 2015 

SWFSC rulemaking (80 FR 8166; 

February 15, 2015). Additionally, 

detailed descriptions of the potential 

effects of similar specified activities 

have also been provided in other 

Federal Register notices (e.g., 81 FR 

38516; 83 FR 37638; 84 FR 6576), and 

section 7 of SWFSC’s application 

provides a discussion of the potential 

effects of their specified activity, which 

we have reviewed for accuracy and 

completeness. No significant new 

information is available, and these 

discussions provide the necessary 

adequate and relevant information 

regarding the potential effects of 

SWFSC’s specified activity on marine 

mammals and their habitat. Therefore, 

we refer the reader to these documents 

rather than repeating the information 

here. The referenced information 

includes a summary and discussion of 

the ways that components of the 

specified activity (e.g., gear deployment, 

use of active acoustic sources, visual 

disturbance) may impact marine 

mammals and their habitat. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3849 

As stated previously, the use of 

certain research gears, including trawl 

nets, hook and line gear, and purse 

seine nets, has the potential to result in 

interaction with marine mammals. In 

the event of a marine mammal 

interaction with research gear, injury, 

serious injury, or mortality may result 

from entanglement or hooking. 

Exposure to sound through the use of 

active acoustic systems for research 

purposes may result in Level B 

harassment. However, as detailed in the 

previously referenced discussions, Level 

A harassment in the form of permanent 

threshold shift (PTS) is extremely 

unlikely to occur, and we consider such 

effects discountable. Finally, in the 

Antarctic only, it is expected that 

hauled pinnipeds may be disturbed by 

approaching researchers such that Level 

B harassment could occur. Ship strike is 

not a reasonably anticipated outcome of 

SWFSC research activities, given the 

small amount of distance covered by 

research vessels and their relatively 

slow speed in comparison to 

commercial shipping traffic (i.e., the 

primary cause of marine mammal vessel 

strikes). 

With specific reference to Level B 

harassment that may occur as a result of 

acoustic exposure, we note that the 

analytical methods from the original 

2015 analysis are retained here. 

However, the state of science with 

regard to our understanding of the likely 

potential effects of the use of systems 

like those used by SWFSC has advanced 

in the preceding five years, as have 

readily available approaches to 

estimating the acoustic footprints of 

such sources, with the result that we 

view this analysis as highly 

conservative. Although more recent 

literature provides documentation of 

marine mammal responses to the use of 

these and similar acoustic systems (e.g., 

Cholewiak et al., 2017; Quick et al., 

2017; Varghese et al., 2020), the 

described responses do not generally 

comport with the degree of severity that 

should be associated with Level B 

harassment, as defined by the MMPA. 

We retain the 2015 analytical approach 

for consistency with existing analyses 

and for purposes of efficiency here, and 

consider this acceptable because the 

approach provides a conservative 

estimate of potential incidents of Level 

B harassment. In summary, while we 

authorize the amount of take by Level B 

harassment indicated in the Estimated 

Take section, and consider these 

potential takings at face value in our 

negligible impact analysis, it is 

uncertain whether use of these acoustic 

systems are likely to cause take at all, 

much less at the estimated levels. 

The Estimated Take section later in 

this document includes a quantitative 

analysis of the number of individuals 

that are expected to be taken by this 

activity. The Negligible Impact Analysis 

and Determinations section considers 

the potential effects of the specified 

activity, the Estimated Take section, and 

the Mitigation section, to draw 

conclusions regarding the likely impacts 

of these activities on the reproductive 

success or survivorship of individuals 

and how those impacts on individuals 

are likely to impact marine mammal 

species or stocks. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes that may 

be authorized under the rule, which will 

inform both NMFS’s consideration of 

whether the number of takes is ‘‘small’’ 

and the negligible impact 

determination. 

Except with respect to certain 

activities not pertinent here, section 

3(18) of the MMPA defines 

‘‘harassment’’ as: Any act of pursuit, 

torment, or annoyance which (i) has the 

potential to injure a marine mammal or 

marine mammal stock in the wild (Level 

A harassment); or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, 

including, but not limited to, migration, 

breathing, nursing, breeding, feeding, or 

sheltering (Level B harassment). 

Take of marine mammals incidental 

to SWFSC research activities could 

occur as a result of (1) injury or 

mortality due to gear interaction in the 

CCE (Level A harassment, serious 

injury, or mortality); (2) behavioral 

disturbance resulting from the use of 

active acoustic sources (Level B 

harassment only); or (3) behavioral 

disturbance of pinnipeds resulting from 

incidental approach of researchers in 

the Antarctic (Level B harassment only). 

Below we describe how the potential 

take is estimated. 

Estimated Take Due to Gear Interaction 

In order to determine the number of 

incidental takes requested for 

authorization, SWFSC retained the 

approach to estimating their requested 

take numbers that was developed in 

support of the 2015 rule. That approach 

was based on historical incidents of gear 

interaction and on an assessment of 

which species of marine mammal that 

have not historically been taken might 

have similar risk of interaction to those 

species that have been taken. In 

particular, records from the year 2008— 

which remains the year with the highest 

number of gear interaction incidents— 

were used as the basis for generating a 

precautionary, worst-case assessment of 

potential takes. Reporting from 2015–19 

under the current regulations 

demonstrates that this approach was 

indeed a precautionary one, as annual 

numbers of takes have remained well 

below those recorded in 2008, and only 

one additional species that had not 

historically been taken in SWFSC 

research gear in 2015 has subsequently 

been taken (common dolphin; see Table 

4). SWFSC has elected to carry forward 

this precautionary approach to their 

take authorization request in support of 

this rulemaking, and we incorporate it 

into our rulemaking, as described in 

further detail below. 

The approach to estimating the 

number of potential incidents of take 

that could occur through gear 

interaction first requires consideration 

of SWFSC’s record of past such 

incidents. We then consider in addition 

other species that may have similar 

vulnerabilities to SWFSC trawl and 

longline gear as those species for which 

we have historical interaction records. 

Historical interactions with research 

gear are described in Tables 4 and 5, 

and we anticipate that all species that 

interacted with SWFSC fisheries 

research gear historically could 

potentially be taken in the future. 

Available records are for the years 2006 

through present. All historical SWFSC 

interactions have taken place in the 

CCE. The locations of incidental take 

events from 2015–2019 are shown in 

Figure 6–1 of SWFSC’s application. 

TABLE 4—HISTORICAL INTERACTIONS WITH TRAWL GEAR

Gear 1 Survey Date Species Number 

killed 

Number 

released 

alive 

Total 

Midwater trawl ......................... Coastal Pelagic Species 

(CPS).

4/24/2006 Northern fur seal (CA stock) .. 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 4/29/2007 Northern fur seal (CA stock) .. 1 ........................ 1 

3850 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

TABLE 4—HISTORICAL INTERACTIONS WITH TRAWL GEAR—Continued 

Gear 1 Survey Date Species Number 

killed 

Number 

released 

alive 

Total 

Midwater trawl 2 ....................... Juvenile Rockfish ................... 5/30/2007 Northern fur seal (eastern Pacific stock).

1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 4/18/2008 California sea lion .................. 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 4/21/2008 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 4/26/2008 Pacific white-sided dolphin ..... 2 ........................ 2 

Midwater trawl ......................... CPS ........................................ 4/27/2008 California sea lion .................. 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 4/27/2008 Northern fur seal (eastern Pacific stock).1 ........................ 1 

Midwater trawl 2 ....................... Juvenile Rockfish ................... 6/15/2008 California sea lion .................. 1 2 3 

Midwater trawl ......................... CPS ........................................ 7/19/2008 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 7/28/2008 California sea lion .................. 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 7/31/2008 Northern fur seal (CA stock) .. 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 8/3/2008 Northern fur seal (CA stock) .. 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 8/9/2008 Pacific white-sided dolphin ..... 11 ........................ 11 

Midwater trawl ......................... CPS ........................................ 8/9/2008 Northern right whale dolphin .. 6 ........................ 6 

Midwater trawl ......................... CPS ........................................ 8/14/2008 California sea lion .................. 9 ........................ 9 

Midwater trawl ......................... CPS ........................................ 5/1/2009 Pacific white-sided dolphin ..... ........................ 3 3 

Midwater trawl 2 ....................... Juvenile Rockfish ................... 5/25/2009 California sea lion .................. ........................ 1 1 

Midwater trawl ......................... CPS ........................................ 4/18/2010 Pacific white-sided dolphin ..... ........................ 1 1 

Midwater trawl ......................... CPS ........................................ 4/25/2010 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl 2 ....................... Juvenile Rockfish ................... 9/10/2010 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 4/3/2011 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl ......................... Juvenile Salmon ..................... 9/9/2011 California sea lion .................. 1 ........................ 1 

Midwater trawl ......................... Juvenile Salmon ..................... 9/10/2011 Pacific white-sided dolphin ..... 6 ........................ 6 

Midwater trawl ......................... CPS ........................................ 6/29/2012 Pacific white-sided dolphin ..... ........................ 1 1 

Midwater trawl ......................... CPS ........................................ 8/18/2012 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 8/24/2012 Pacific white-sided dolphin ..... 2 ........................ 2 

Midwater trawl ......................... CPS ........................................ 8/1/2013 Pacific white-sided dolphin ..... 1 2 3 

Midwater trawl ......................... Juvenile Salmon ..................... 9/14/2013 Pacific white-sided dolphin ..... 3 ........................ 3 

Midwater trawl 2 ....................... Juvenile Rockfish ................... 6/1/2014 Pacific white-sided dolphin ..... 1 ........................ 1

Surface trawl ............................ Sardine-Hake Acoustic Trawl 8/26/2015 Pacific white-sided dolphin ..... 1 ........................ 1 

Surface trawl ............................ Juvenile Salmon ..................... 9/14/2015 California sea lion .................. ........................ 1 1 

Midwater trawl 2 ....................... Juvenile Rockfish ................... 5/15/2016 Pacific white-sided dolphin ..... 1 ........................ 1 

Surface trawl ............................ CPS ........................................ 7/17/2016 Pacific white-sided dolphin ..... 7 1 8 

Midwater trawl 2 ....................... Juvenile Rockfish ................... 6/14/2018 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl 2 ....................... Juvenile Rockfish ................... 6/21/2018 California sea lion .................. 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 7/24/2018 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl ......................... CPS ........................................ 8/27/2018 Pacific white-sided dolphin ..... 1 ........................ 1 

Surface trawl ............................ CCE Survey (CCES) .............. 6/22/2019 Pacific white-sided dolphin ..... 2 ........................ 2 

Midwater trawl ......................... CCES ..................................... 8/8/2019 Pacific white-sided dolphin ..... 2 ........................ 2 

Midwater trawl ......................... CCES ..................................... 8/8/2019 Pacific white-sided dolphin ..... 1 ........................ 1 

Midwater trawl ......................... CCES ..................................... 8/26/2019 Common dolphin (longbeaked).1 ........................ 1 

Total individuals captured (total number of interactions given in parentheses) Northern fur seal (6) ............... 6 ........................ 6 

California sea lion (9) ............. 15 4 19 

Pacific white-sided dolphin 

(25).

49 8 57 

Northern right whale dolphin 

(1).

6 ........................ 6 

Common dolphin (1) .............. 1 ........................ 1 

1All incidents involved use of the NETS Nordic 264 midwater trawl, except as noted below. 

2These incidents involved use of the modified-Cobb midwater trawl. 

TABLE 5—HISTORICAL INTERACTIONS WITH LONGLINE GEAR

Gear Survey Date Species Number killed Number 

released alive Total 

Pelagic longline ....................... Highly Migratory Species 

(HMS).

9/6/2008 California sea lion .................. ........................ 1 1 

Pelagic longline ....................... HMS ....................................... 9/15/2008 California sea lion .................. ........................ 1 1 

Pelagic longline ....................... Thresher Shark ...................... 9/18/2009 California sea lion .................. ........................ 1 1 

Pelagic longline ....................... HMS ....................................... 7/27/2010 California sea lion .................. ........................ 1 1 

Pelagic longline ....................... HMS ....................................... 6/23/2012 California sea lion .................. ........................ 1 1 

Pelagic longline ....................... HMS ....................................... 7/10/2013 California sea lion .................. ........................ 1 1 

Pelagic longline ....................... HMS ....................................... 7/2/2014 California sea lion .................. ........................ 1 1 

Pelagic longline ....................... HMS ....................................... 7/8/2015 California sea lion .................. 1 ........................ 1 

Pelagic longline ....................... Thresher Shark ...................... 9/20/2015 California sea lion .................. ........................ 1 1 

Total .................................. ................................................. ........................ ................................................. 1 8 9 

In order to use these historical 

interaction records as the basis for the 

take estimation process, and because we 

have no specific information to indicate 

whether any given future interaction 

might result in M/SI versus Level A 

harassment, we conservatively assume 

that all interactions equate to mortality 

for these fishing gear interactions. The 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3851 

SWFSC has no recorded interactions 

with any gear other than midwater trawl 

and pelagic longline gear, and we do not 

anticipate any future interactions in any 

other gears historically used by SWFSC, 

including the bottom trawl gear 

periodically employed by the SWFSC in 

the AMLR. However, SWFSC has not 

historically used purse seine gear, and 

we do anticipate that the planned future 

use of purse seine gear in the CCE could 

present some risk of marine mammal 

interaction. 

During trawl surveys, SWFSC has 

recorded interactions with northern fur 

seals (California and eastern Pacific 

stocks); California sea lions; Pacific 

white-sided dolphins; northern right 

whale dolphins; and common dolphins 

(long-beaked stock). No northern fur 

seal has been captured since 2008, and 

northern right whale dolphins have 

been involved in only one incident, also 

in 2008. Common dolphins have been 

involved in only one incident. 

Therefore, California sea lions and 

Pacific white-sided dolphins are the 

species most likely to interact with 

SWFSC trawl gear. For longline gear, 

only California sea lions have been 

captured. 

Take records from 2008 were used as 

the basis for estimation of potential 

incidental take in support of the 2015 

rule, as this year was the worst on 

record and therefore was assumed to 

provide a worst-case basis for predicting 

potential future take. Take interactions 

from 2008 remain the historical 

maximum. Therefore, as noted above, 

the 2015 analysis is retained here as a 

potential worst-case scenario for marine 

mammal take in SWFSC gear over the 5 

years considered in this rulemaking. In 

the 2015 analysis, the annual average 

over the most recent 5-year period that 

included 2008 (rounded up to the next 

whole number) was used to estimate the 

potential annual take level over the next 

five years. A five-year time frame 

provides enough data to adequately 

capture year-to-year variation in take 

levels, reflecting environmental 

conditions that may change over time. 

In order to incorporate records from the 

year 2008, we retain 2008–12 as the 5- 

year period over which we consider 

interaction records. Those annual 

averages are 7 Pacific white-sided 

dolphins, 4 California sea lions, 2 

northern right whale dolphins, and 1 

northern fur seal, and the prior 

assumption was that this number could 

be taken in each of the 5 years (i.e., 35 

Pacific white-sided dolphins, 20 

California sea lions, 10 northern right 

whale dolphins, 5 northern fur seals). 

These take numbers are retained, with 

the exception of the Pacific white-sided 

dolphin. Historically, the CPS survey 

has only surveyed in water depths >50 

m and consequently does not sample 

the nearshore area, potentially undersampling any nearshore CPS 

aggregations. The aim of planned 

collaborative research over the next five 

years is to quantify this potential 

sampling bias by using an industry 

fishing vessel to extend the sampling 

closer to shore. In order to account for 

the potential for increased interactions 

with Pacific white-sided dolphins in 

nearshore waters, SWFSC added one 

additional take per year. For the species 

most commonly taken, the maximum 

number of individuals taken through 

any one interaction was 11 Pacific 

white-sided dolphins and 9 California 

sea lions. Similarly, the annual average 

of California sea lions taken in longline 

gear from 2008–12 was 1. Therefore, the 

assumption is that five California sea 

lions may be taken in hook and line gear 

over the next five-year period. 

In order to evaluate the potential 

vulnerability of additional species to 

midwater trawl and pelagic longline 

gear as part of the take estimation 

process for the 2015 rule, we consulted 

NMFS’ List of Fisheries (LOF), which 

classifies U.S. commercial fisheries into 

one of three categories according to the 

level of incidental marine mammal M/ 

SI that is known to occur on an annual 

basis over the most recent five-year 

period (generally) for which data has 

been analyzed: Category I, frequent 

incidental M/SI; Category II, occasional 

incidental M/SI; and Category III, 

remote likelihood of or no known 

incidental M/SI. 

Information related to incidental M/SI 

in relevant commercial fisheries is not, 

however, the sole determinant of 

whether it may be appropriate to 

authorize take incidental to SWFSC 

survey operations. A number of factors 

(e.g., species-specific knowledge 

regarding animal behavior, overall 

abundance in the geographic region, 

density relative to SWFSC survey effort, 

feeding ecology, propensity to travel in 

groups commonly associated with other 

species historically taken) were taken 

into account by the SWFSC to 

determine whether a species may have 

a similar vulnerability to certain types 

of gear as historically taken species. In 

some cases, we have determined that 

species without documented M/SI may 

nevertheless be vulnerable to capture in 

SWFSC research gear. Similarly, we 

have determined that some species 

groups with documented M/SI are not 

likely to be vulnerable to capture in 

SWFSC gear. 

This review led to our inference that 

common dolphin, Risso’s dolphin, 

Dall’s porpoise, Steller sea lion, harbor 

seal, and northern elephant seal could 

have risk of capture in midwater trawl 

gear given the demonstrated risk of 

capture in commercial fishing gear that 

is similar to the gear used by SWFSC. 

In addition, as a result of presumed 

similarities to Pacific white-sided 

dolphin or California sea lion or to other 

species for which there are recorded 

interactions in similar commercial 

fishing gear, SWFSC determined that 

there was risk of capture for striped 

dolphin, bottlenose dolphin, and harbor 

porpoise despite a lack of relevant LOF 

records. 

The LOF review similarly led to our 

inference that Kogia spp., bottlenose 

dolphin, common dolphin, striped 

dolphin, Risso’s dolphin, and shortfinned pilot whale could have risk of 

capture in pelagic longline gear given 

the demonstrated risk of capture in 

commercial fishing gear that is similar 

to the gear used by SWFSC. We note 

that, due to the expected distribution of 

longline sampling effort in offshore 

waters, no take of coastal bottlenose 

dolphins in longline gear is expected. In 

addition, as a result of presumed 

similarities to California sea lion or to 

other species for which there are 

recorded interactions in similar 

commercial fishing gear, SWFSC 

determined that there was risk of 

capture for Steller sea lion despite a lack 

of relevant LOF records. 

As noted above, the worst-case single 

interactions with trawl gear for the two 

most commonly taken species (Pacific 

white-sided dolphin and California sea 

lion) involved 11 and 9 individuals, 

respectively. For species deemed by 

SWFSC to have a similar risk profile as 

these two species, these numbers were 

taken to represent the potential total 

take over the five-year period. Use of 

these numbers is sufficient to 

appropriately analyze either of two 

scenarios: (1) More frequent interactions 

with a lesser number of individuals; or 

(2) a single, worst-case interaction. For 

trawl gear, species deemed to have a 

similar risk profile as the Pacific whitesided dolphin include the Risso’s 

dolphin, bottlenose dolphin, striped 

dolphin, and common dolphins. (Note 

that the 11 takes for bottlenose dolphin 

in trawl gear are split across stocks 

based on the spatial distribution of 

SWFSC trawl survey effort; 8 takes are 

assumed for the offshore stock and 3 

takes for the coastal stock.) Species 

deemed to have a similar risk profile as 

the California sea lion include the 

Steller sea lion and harbor seal. The 

remainder of species determined to be at 

risk of potential interaction with trawl 

gear are expected to have a relatively 

3852 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

lower risk profile and, therefore, the 

expected potential take is one per year, 

or five over the five-year period. Note 

that a common dolphin has 

subsequently been captured in SWFSC 

trawl gear. However, we retain the 

original approach, which yields a fiveyear take estimate of 11 animals, versus 

the approach for historically captured 

species, which would produce a 

rounded annual average of 1 and, 

therefore, a 5-year estimate of 5. 

For hook and line gear, no species is 

expected to have a similar risk profile as 

the California sea lion and, therefore, 

the expected potential take for all other 

cetacean species is two over the fiveyear period, with the exception of 

bottlenose dolphin, for which only one 

take over five years was requested. 

Although take due to use of deep-set 

buoy gear is generally considered 

unlikely, SWFSC increased their take 

request for most cetacean species over 

the 2015 request (from 1 to 2 over five 

years) due to the potential that their use 

of this gear in cetacean habitat could 

lead to an increased risk of interaction 

compared with only their use of typical 

pelagic longline gear. 

Regarding potential interactions with 

purse seine gear, we adopt the analysis 

that was developed in support of a 

similar incidental take rulemaking 

requested by NMFS’ Northwest 

Fisheries Science Center (NWFSC) (83 

FR 36370; July 27, 2018). Unlike 

SWFSC, NWFSC has historically used 

purse seine gear and similarly operates 

in the CCE. NWFSC has not had any 

historical interactions with purse seine 

gear. Therefore, we followed a similar 

approach as described above, in which 

the LOF was consulted and assumptions 

regarding species that may be 

vulnerable to interactions with the gear 

developed. Species with presumed risk 

of interaction with purse seine gear, 

based on LOF records, include common 

dolphins, harbor seal, and California sea 

lion. In addition, despite a lack of 

relevant LOF records, NWFSC deemed 

the following species as having risk of 

potential interaction with purse seine 

gear: Dall’s porpoise, Pacific whitesided dolphin, Risso’s dolphin, northern 

right whale dolphin, Steller sea lion, 

and harbor porpoise. SWFSC reviewed 

the assumptions made by NWFSC and 

has concurred and adopted the same 

assumptions in support of their 

requested take authorization. SWFSC 

additionally reviews records of marine 

mammal interactions with commercial 

purse seines in section 6.2.2 of their 

application. For most species, the risk of 

interaction is expected to be relatively 

low and, therefore, SWFSC requested 

authorization of one take per potentially 

affected stock over the five-year period. 

However, based on the greater number 

of recorded interactions with purse 

seine gear for California sea lions and 

harbor seals, SWFSC requested 5 takes 

for each species over the five-year 

period. 

We have reviewed subsequent LOFs 

and determined that there are no new 

records that would change the 

assumptions regarding potential 

vulnerability to gear interaction 

described above. For a summation of the 

LOF records discussed above for trawl 

and longline gear, please see Table 13 

(80 FR 8166) and Table 6 (81 FR 38516). 

The final 2020 LOF was published on 

April 16, 2020 (85 FR 21079), and more 

information about the LOF is available 

online at: www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-protection-act-listfisheries. 

It is also possible that a captured 

animal may not be able to be identified 

to species with certainty. Certain 

pinnipeds and small cetaceans are 

difficult to differentiate at sea, 

especially in low-light situations or 

when a quick release is necessary. For 

example, a captured delphinid that is 

struggling in the net may escape or be 

freed before positive identification is 

made. Therefore, the SWFSC requested 

the authorization of incidental take in 

trawl gear for one unidentified pinniped 

and one unidentified small cetacean, 

and additionally one take of 

unidentified pinnipeds in both purse 

seine and longline gear, over the course 

of the five-year period of the 

regulations. Table 6 summarizes the 

total M/SI take authorization due to gear 

interaction in the CCE. 

TABLE 6—TOTAL ESTIMATED TAKE DUE TO GEAR INTERACTION IN THE CCE, 2020–25 1

Species 

Estimated 

5-year total, 

trawl 

Estimated 

5-year total, 

hook and line 

Estimated 

5-year total, 

purse seine 

Total 

Kogia spp. 2 ................................................................................................ .......................... 2 .......................... 2 

Bottlenose dolphin (CA/OR/WA offshore) 3 ............................................... 8 1 .......................... 9 

Bottlenose dolphin (CA coastal) 3 .............................................................. 3 .......................... .......................... 3 

Striped dolphin ........................................................................................... 11 2 1 14 

Common dolphin (short-beaked) ............................................................... 11 2 1 14 

Common dolphin (long-beaked) ................................................................ 11 2 1 14 

Pacific white-sided dolphin ........................................................................ 40 .......................... 1 41 

Northern right whale dolphin ..................................................................... 10 .......................... 1 11 

Risso’s dolphin ........................................................................................... 11 2 1 14 

Short-finned pilot whale ............................................................................. .......................... 2 .......................... 2 

Harbor porpoise 4 ....................................................................................... 5 .......................... 1 6 

Dall’s porpoise ........................................................................................... 5 .......................... 1 6 

Northern fur seal 5 ...................................................................................... 5 .......................... .......................... 5 

California sea lion ...................................................................................... 20 5 5 30 

Steller sea lion ........................................................................................... 9 1 .......................... 10 

Harbor seal 4 .............................................................................................. 9 .......................... 5 14 

Northern elephant seal .............................................................................. 5 .......................... .......................... 5 

Unidentified pinniped ................................................................................. 1 1 1 3 

Unidentified cetacean ................................................................................ 1 .......................... .......................... 1 

1Please see preceding text for derivation of take estimates. 

2We expect that Kogia spp. taken over the five-year timespan could be either a pygmy or dwarf sperm whale. 3As a species believed to have similar propensity for capture in trawl gear as that demonstrated by the Pacific white-sided dolphin, we assume 

that eleven bottlenose dolphins could be captured over the five-year timespan. Total potential take of bottlenose dolphins in trawl gear has been 

apportioned by stock according to typical occurrence of that stock relative to SWFSC survey locations. We assume that the requested take of a 

bottlenose dolphin in longline gear would be from the offshore stock due to the typical location of SWFSC longline sampling. 4 Incidental take may be of animals from any stock, excluding Washington inland waters stocks. 

5 Incidental take may be of animals from either the eastern Pacific or California stocks. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3853 

Whales—For large whales (baleen 

whales and sperm whales), beaked 

whales, and killer whales, observed M/ 

SI is extremely rare for trawl gear and, 

for most of these species, only slightly 

more common in longline gear. 

Although whale species could become 

captured or entangled in SWFSC gear, 

the probability of interaction is 

extremely low considering the lower 

level of effort relative to that of 

commercial fisheries. We believe it 

extremely unlikely that any large whale, 

beaked whale, or killer whale would be 

captured or entangled in SWFSC 

research gear. 

Estimated Take Due to Acoustic 

Harassment 

As described previously, we believe it 

unlikely that SWFSC use of active 

acoustic sources is realistically likely to 

cause Level B harassment of marine 

mammals. However, per SWFSC 

request, we conservatively assume that, 

at worst, Level B harassment may result 

from exposure to noise from these 

sources, and we carry forward the 

analytical approach developed in 

support of the 2015 rule. At that time, 

in order to quantify the potential for 

Level B harassment to occur, NMFS 

developed an analytical framework 

considering characteristics of the active 

acoustic systems, their expected 

patterns of use, and characteristics of 

the marine mammal species that may 

interact with them. The framework 

incorporated a number of deliberately 

precautionary, simplifying assumptions, 

and the resulting exposure estimates, 

which are presumed here to equate to 

take by Level B harassment (as defined 

by the MMPA), may be seen as an 

overestimate of the potential for such 

effects to occur as a result of the 

operation of these systems. 

Regarding the potential for Level A 

harassment in the form of permanent 

threshold shift to occur, the very short 

duration sounds emitted by these 

sources reduces the likely level of 

accumulated energy an animal is 

exposed to. An individual would have 

to remain exceptionally close to a sound 

source for unrealistic lengths of time, 

suggesting the likelihood of injury 

occurring is exceedingly small. Potential 

Level A harassment is therefore not 

considered further in this analysis. 

The assessment paradigm for active 

acoustic sources used in SWFSC 

fisheries research is relatively 

straightforward and has a number of key 

simplifying assumptions. Sound 

produced by these sources is 

intermittent and, therefore, evaluated 

against the 160 dB rms criterion for 

Level B harassment by behavioral 

disturbance. Estimating the number of 

exposures at the specified received level 

requires several determinations: 

(1) A detailed characterization of the 

acoustic characteristics of the effective 

sound source or sources in operation; 

(2) The operational areas exposed to 

levels at or above those associated with 

Level B harassment when these sources 

are in operation; 

(3) A method for quantifying the 

resulting sound fields around these 

sources; and 

(4) An estimate of the average density 

for marine mammal species in each area 

of operation. 

We provide a summary of the 

analytical approach here, but invite the 

reader interested in additional detail to 

review the detailed description 

provided in support of the 2015 rule (80 

FR 8166) as well as the detailed 

description provided in section 6.4.2 of 

SWFSC’s application. 

Quantifying the spatial and temporal 

dimension of the sound exposure 

footprint (or ‘‘swath width’’) of the 

active acoustic devices in operation on 

moving vessels and their relationship to 

the average density of marine mammals 

enables a quantitative estimate of the 

number of events in which sound levels 

exceed the relevant threshold. The 

number of potentially harassing 

exposures is ultimately estimated as the 

product of the volume of water 

ensonified at 160 dB rms or higher (to 

a maximum depth of 500 m) and the 

volumetric density of animals 

determined from simple assumptions 

about their vertical stratification in the 

water column. Specifically, reasonable 

assumptions based on what is known 

about diving behavior across different 

marine mammal species were made to 

segregate those that predominately 

remain in the upper 200 m of the water 

column versus those that regularly dive 

deeper during foraging and transit. 

Because depths range dramatically 

along the margin of the continental 

slope that define the outer edge of the 

survey areas, but deeper surveyed 

depths rarely range over 500 m in 

practice, the depth range for 

determining volumes was set at 500 m 

for deep diving species. 

An initial characterization of the 

general source parameters for the 

primary active acoustic sources 

operated by the SWFSC was conducted, 

enabling a full assessment of all sound 

sources used by the SWFSC (see Table 

2 of the notice of proposed rulemaking). 

This auditing of the active acoustic 

sources also enabled a determination of 

the predominant sources that, when 

operated, would have sound footprints 

exceeding those from any other 

simultaneously used sources. These 

sources were effectively those used 

directly in acoustic propagation 

modeling to estimate the zones within 

which the 160 dB rms received level 

would occur. 

Many of these sources can be operated 

in different modes and with different 

output parameters. In modeling their 

potential impact areas, those features 

among those given in Table 2 of the 

notice of proposed rulemaking (e.g., 

lowest operating frequency) that would 

lead to the most precautionary estimate 

of maximum received level ranges (i.e., 

largest ensonified area) were used. The 

effective beam patterns took into 

account the normal modes in which 

these sources are typically operated. 

While these signals are brief and 

intermittent, a conservative assumption 

was taken in ignoring the temporal 

pattern of transmitted pulses in 

calculating potential Level B harassment 

events. Operating characteristics of each 

of the predominant sound sources were 

used in the calculation of effective linekilometers and area of exposure for each 

source in each survey. 

Three predominant sources were 

identified as having the largest potential 

impact zones during operations, based 

on their relatively lower output 

frequency, higher output power, and 

their operational pattern of use. These 

sources are the SX90, EK60/EK80, and 

ME70. Estimated effective crosssectional areas of exposure were 

estimated for each of these sources. In 

determining the effective linekilometers for each of these 

predominant sources, the operational 

patterns of use relative to one another 

were further applied to determine 

which source was the predominant one 

operating at any point in time for each 

survey. When multiple sound sources 

are used simultaneously, the one with 

the largest potential impact zone in each 

relevant depth strata is considered for 

use in estimating exposures. 

The cross-sectional area of water 

ensonified at or above the 160 dB rms 

threshold was calculated using a simple 

model of sound propagation loss, which 

accounts for the loss of sound energy 

over increasing range. We used a 

spherical spreading model (where 

propagation loss = 20 * log [range]; such 

that there would be a 6-dB reduction in 

sound level for each doubling of 

distance from the source), a reasonable 

approximation over the relatively short 

ranges involved. Spherical spreading is 

a reasonable assumption even in 

relatively shallow waters since, taking 

into account the beam angle, the 

reflected energy from the seafloor will 

be much weaker than the direct source 

3854 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

and the volume influenced by the 

reflected acoustic energy would be 

much smaller over the relatively short 

ranges involved. We also accounted for 

the frequency-dependent absorption 

coefficient and beam pattern of these 

sound sources, which is generally 

highly directional. The lowest frequency 

was used for systems that are operated 

over a range of frequencies. The vertical 

extent of this area is calculated for two 

depth strata. These results were applied 

differentially based on the typical 

vertical stratification of marine 

mammals. 

Following the determination of 

effective sound exposure area for 

transmissions considered in two 

dimensions, the next step was to 

determine the effective volume of water 

ensonified at or above 160 dB rms for 

the entirety of each survey. For each of 

the three predominant sound sources, 

the volume of water ensonified is 

estimated as the athwartship crosssectional area (in square kilometers) of 

sound at or above 160 dB rms 

multiplied by the total distance traveled 

by the ship. Where different sources 

operating simultaneously would be 

predominant in each different depth 

strata, the resulting cross-sectional area 

calculated took this into account. 

Specifically, for shallow-diving species 

this cross-sectional area was determined 

for whichever was predominant in the 

shallow stratum, whereas for deeperdiving species this area was calculated 

from the combined effects of the 

predominant source in the shallow 

stratum and the (sometimes different) 

source predominating in the deep 

stratum. This creates an effective total 

volume characterizing the area 

ensonified when each predominant 

source is operated and accounts for the 

fact that deeper-diving species may 

encounter a complex sound field in 

different portions of the water column. 

The best available information 

regarding marine mammal occurrence in 

the CCE was used to develop volumetric 

density values for use in calculating 

estimated exposures. This information 

was determined through review of 

available information, as indicated 

through NOAA’s CetMap catalogue, 

available online at: cetsound.noaa.gov/ 

cda-index. More detail, and the density 

values used, are provided in section 3 

and Appendix A of the SWFSC 

application. For marine mammals 

occurring in the AMLR, no new 

information is available, and the density 

values used in the 2015 rule are carried 

forward. 

Estimates of potential incidents of 

Level B harassment (i.e., potential 

exposure to levels of sound at or 

exceeding the 160 dB rms threshold) are 

then calculated by using (1) the 

combined results from output 

characteristics of each source and 

identification of the predominant 

sources in terms of acoustic output; (2) 

their relative annual usage patterns for 

each operational area; (3) a sourcespecific determination made of the area 

of water associated with received 

sounds at the extent of a depth 

boundary; and (4) determination of a 

biologically-relevant volumetric density 

of marine mammal species in each area. 

Estimates of Level B harassment by 

acoustic sources are the product of the 

volume of water ensonified at 160 dB 

rms or higher for the predominant 

sound source for each relevant survey 

and the volumetric density of animals 

for each species. Please see Tables 6–12 

and 6–13 in SWFSC’s application for 

relevant information. Take estimates are 

summarized in Table 9 below. 

Estimated Take Due to Physical 

Disturbance 

Estimated take due to physical 

disturbance could potentially happen in 

the AMLR only as a result of the 

unintentional approach of SWFSC 

vessels to pinnipeds hauled out on ice, 

and would result in no greater than 

Level B harassment. During Antarctic 

ecosystem surveys conducted in the 

austral winter (i.e., June 1 through 

August 31), it is expected that shipboard 

activities may result in behavioral 

disturbance of some pinnipeds. It is 

likely that some pinnipeds on ice will 

move or flush from the haul-out into the 

water in response to the presence or 

sound of SWFSC survey vessels. 

Behavioral responses may be considered 

according to the scale shown in Table 7 

and based on the method developed by 

Mortenson (1996). We consider 

responses corresponding to Levels 2–3 

to constitute Level B harassment. 

TABLE 7—PINNIPED RESPONSE TO DISTURBANCE

Level Type of 

response Definition 

1 ......................... Alert .................. Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, 

changing from a lying to a sitting position, or brief movement of less than twice the animal’s body 

length. 

2 ......................... Movement ......... Movements in response to the source of disturbance, ranging from short withdrawals at least twice the 

animal’s body length to longer retreats over the beach, or if already moving a change of direction of 

greater than 90 degrees. 

3 ......................... Flush ................. All retreats (flushes) to the water. 

The SWFSC has estimated potential 

incidents of Level B harassment due to 

physical disturbance (Table 8) using the 

vessel distance traveled (20,846 km) 

during a typical AMLR survey, an 

effective strip width of 200 m (animals 

are assumed to react if they are less than 

100 m from the vessel; see below), and 

the estimated population density for 

each species (see Table 6–2 of SWFSC’s 

application). Although there is likely to 

be variation between individuals and 

species in reactions to a passing 

research vessel—that is, some animals 

assumed to react in this calculation will 

not react, and others assumed not to 

react because they are outside the 

effective strip width may in fact react— 

we believe that this approach is a 

reasonable effort towards accounting for 

this potential source of disturbance and 

have no information to indicate that the 

approach is biased either negatively or 

positively. SWFSC used an effective 

strip width of 200 m (i.e., 100 m on 

either side of a passing vessel) to be 

consistent with the regional marine 

mammal viewing guidelines that NMFS 

has established for Alaska, which 

restrict approaches to marine mammals 

to a distance of 100 m or greater in order 

to reduce the potential to cause 

inadvertent harm. Alaska is believed to 

have the most similar environment to 

the Antarctic of all regions for which 

NMFS has established viewing 

guidelines. Each estimate is the product 

of the species-specific density, annual 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3855 

line-kilometers, and the effective stripwidth. 

TABLE 8—ESTIMATED LEVEL B HARASSMENT OF PINNIPEDS ASSOCIATED WITH AMLR VESSEL TRANSECTS

Species 

Estimated 

annual 

Level B 

harassment 

5-Year 

total 

Antarctic fur seal ...................................................................................................................................................... 417 2,085 

Southern elephant seal ............................................................................................................................................ 1 1 5 

Weddell seal ............................................................................................................................................................ 225 1,125 

Crabeater seal ......................................................................................................................................................... 2,704 13,520 

Leopard seal ............................................................................................................................................................ 68 340 

1Based on the recommendation of the Marine Mammal Commission (see Comments and Responses), this has been increased to 5. 

Mitigation 

Under Section 101(a)(5)(A) of the 

MMPA, NMFS must set forth the 

permissible methods of taking pursuant 

to such activity, and other means of 

effecting the least practicable adverse 

impact on such species or stock and its 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stock for 

taking for certain subsistence uses 

(‘‘least practicable adverse impact’’). 

NMFS does not have a regulatory 

definition for ‘‘least practicable adverse 

impact.’’ However, NMFS’ 

implementing regulations require 

applicants for incidental take 

authorizations to include information 

about the availability and feasibility 

(economic and technological) of 

equipment, methods, and manner of 

conducting such activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, we 

carefully consider two primary factors: 

(1) The manner in which, and the 

degree to which, implementation of the 

measure(s) is expected to reduce 

impacts to marine mammal species or 

stocks, their habitat, and their 

availability for subsistence uses. This 

analysis will consider such things as the 

nature of the potential adverse impact 

(such as likelihood, scope, and range), 

the likelihood that the measure will be 

effective if implemented, and the 

likelihood of successful 

implementation. 

(2) The practicability of the measure 

for applicant implementation. 

Practicability of implementation may 

consider such things as cost, impact on 

operations, personnel safety, and 

practicality of implementation. 

The following suite of mitigation 

measures and procedures, i.e., measures 

taken to monitor, avoid, or minimize the 

encounter and potential take of marine 

mammals, will be employed by the 

SWFSC during research cruises and 

activities. For a summary of measures 

proposed by SWFSC, please see Table 

11–1 of the application. These 

procedures are the same whether the 

survey is conducted by SWFSC or is a 

SWFSC-supported survey, which may 

be conducted onboard a variety of 

vessels, e.g., on board a NOAA vessel or 

charter vessel. The procedures 

described are based on protocols used 

during previous research surveys and/or 

best practices developed for commercial 

fisheries using similar gear. The SWFSC 

conducts a large variety of research 

operations, but only activities using 

trawl, hook and line, and purse seine 

gears are expected to present a 

reasonable likelihood of resulting in 

incidental take of marine mammals. 

SWFSC’s past survey operations have 

resulted in marine mammal 

interactions. These protocols are 

designed to minimize to the extent 

practicable the interactions that do 

happen while providing credible, 

documented, and safe encounters with 

observed or captured animals. 

Mitigation procedures will be focused 

on those situations where mammals, in 

the best professional judgement of the 

vessel operator and Chief Scientist (CS), 

pose a risk of incidental take. In many 

instances, the SWFSC will use 

streamlined protocols and training for 

protected species developed in support 

of the 2015 rule and refined during 

implementation of the rule. 

The SWFSC has invested significant 

time and effort in identifying 

technologies, practices, and equipment 

to minimize the impact of the proposed 

activities on marine mammal species 

and stocks and their habitat. These 

efforts have resulted in the 

consideration of many potential 

mitigation measures, including those 

the SWFSC has determined to be 

feasible and has implemented for years 

as a standard part of sampling protocols. 

These measures include the move-on 

rule mitigation protocol (also referred to 

in the preamble as the move-on rule), 

protected species visual watches, and 

use of acoustic pingers and a marine 

mammal exclusion device (MMED) on 

surface trawls using the Nordic 264 

trawl net. 

Effective monitoring is a key step in 

implementing mitigation measures and 

is achieved through regular marine 

mammal watches. Marine mammal 

watches are a standard part of 

conducting SWFSC fisheries research 

activities, particularly those activities 

that use gears that are known to or 

potentially interact with marine 

mammals. Marine mammal watches and 

monitoring occur during daylight hours 

prior to deployment of gear (e.g., trawls, 

purse seine, and longline gear), and they 

continue through active fishing and 

during retrieval of gear. If marine 

mammals are sighted in the area and are 

considered to be at risk of interaction 

with the research gear, then the 

sampling station is either moved or 

canceled or the activity is suspended 

until the marine mammals are no longer 

in the area. On smaller vessels, the CS 

and the vessel operator are typically 

those looking for marine mammals and 

other protected species. When marine 

mammal researchers are on board 

(distinct from marine mammal observers 

dedicated to monitoring for potential 

gear interactions), they will record the 

estimated species and numbers of 

animals present and their behavior. If 

marine mammal researchers are not on 

board or available, then the CS in 

cooperation with the vessel operator 

will monitor for marine mammals and 

provide training as practical to bridge 

crew and other crew to observe and 

record such information. Because 

marine mammals are frequently 

observed in CCE waters, marine 

mammal observations may be limited to 

3856 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

those animals that directly interact with 

or are near to the vessel or gear. NOAA 

vessels, chartered vessels, and affiliated 

vessels or studies are required to 

monitor interactions with marine 

mammals but are limited to reporting 

direct interactions, dead animals, or 

entangled whales. 

General Measures 

Coordination and Communication— 

When SWFSC survey effort is 

conducted aboard NOAA-owned 

vessels, there are both vessel officers 

and crew and a scientific party. Vessel 

officers and crew are not composed of 

SWFSC staff but are employees of 

NOAA’s Office of Marine and Aviation 

Operations (OMAO), which is 

responsible for the management and 

operation of NOAA fleet ships and 

aircraft and is composed of uniformed 

officers of the NOAA Commissioned 

Corps as well as civilians. The ship’s 

officers and crew provide mission 

support and assistance to embarked 

scientists, and the vessel’s Commanding 

Officer (CO) has ultimate responsibility 

for vessel and passenger safety and, 

therefore, decision authority. When 

SWFSC survey effort is conducted 

aboard cooperative platforms (i.e., nonNOAA vessels), ultimate responsibility 

and decision authority again rests with 

non-SWFSC personnel (i.e., vessel’s 

master or captain). Decision authority 

includes the implementation of 

mitigation measures (e.g., whether to 

stop deployment of trawl gear upon 

observation of marine mammals). The 

scientific party involved in any SWFSC 

survey effort is composed, in part or 

whole, of SWFSC staff and is led by a 

CS. Therefore, because the SWFSC—not 

OMAO or any other entity that may 

have authority over survey platforms 

used by SWFSC—is the applicant to 

whom any incidental take authorization 

issued under the authority of these 

regulations will be issued, we require 

that the SWFSC take all necessary 

measures to coordinate and 

communicate in advance of each 

specific survey with OMAO, or other 

relevant parties, to ensure that all 

mitigation measures and monitoring 

requirements described herein, as well 

as the specific manner of 

implementation and relevant eventcontingent decision-making processes, 

are clearly understood and agreed-upon. 

This may involve description of all 

required measures when submitting 

cruise instructions to OMAO or when 

completing contracts with external 

entities. SWFSC will coordinate and 

conduct briefings at the outset of each 

survey and as necessary between ship’s 

crew (CO/master or designee(s), as 

appropriate) and scientific party in 

order to explain responsibilities, 

communication procedures, marine 

mammal monitoring protocol, and 

operational procedures. The CS will be 

responsible for coordination with the 

Officer on Deck (OOD; or equivalent on 

non-NOAA platforms) to ensure that 

requirements, procedures, and decisionmaking processes are understood and 

properly implemented. 

Vessel Speed—Vessel speed during 

active sampling rarely exceeds 5 kn, 

with typical speeds being 2–4 kn. 

Transit speeds vary from 6–14 kn but 

average 10 kn. These low vessel speeds 

minimize the potential for ship strike. 

At any time during a survey or in 

transit, if a crew member or designated 

marine mammal observer standing 

watch sights marine mammals that may 

intersect with the vessel course that 

individual will immediately 

communicate the presence of marine 

mammals to the bridge for appropriate 

course alteration or speed reduction, as 

possible, to avoid incidental collisions. 

Other Gears—The SWFSC deploys a 

wide variety of gear to sample the 

marine environment during all of their 

research cruises. Many of these types of 

gear (e.g., plankton nets, video camera 

and ROV deployments) are not 

considered to pose any risk to marine 

mammals and are therefore not subject 

to specific mitigation measures. 

However, at all times when the SWFSC 

is conducting survey operations at sea, 

the OOD and/or CS and crew will 

monitor for any unusual circumstances 

that may arise at a sampling site and use 

best professional judgment to avoid any 

potential risks to marine mammals 

during use of all research equipment. 

Handling Procedures—Handling 

procedures are those taken to return a 

live animal to the sea or process a dead 

animal. The SWFSC will continue to 

implement handling protocols 

developed in support of the 2015 rule 

and refined during implementation of 

the rule, to minimize potential harm to 

marine mammals that are incidentally 

taken during the course of fisheries 

research activities. These procedures are 

expected to increase post-release 

survival and, in general, following a 

‘‘common sense’’ approach to handling 

captured or entangled marine mammals 

will present the best chance of 

minimizing injury to the animal and of 

decreasing risks to scientists and vessel 

crew. Handling or disentangling marine 

mammals carries inherent safety risks, 

and using best professional judgment 

and ensuring human safety is 

paramount. 

Captured live or injured marine 

mammals are released from research 

gear and returned to the water as soon 

as possible with no gear or as little gear 

remaining on the animal as possible. 

Animals are released without removing 

them from the water if possible and data 

collection is conducted in such a 

manner as not to delay release of the 

animal(s) or endanger the crew. SWFSC 

staff are instructed on how to identify 

different species; handle and bring 

marine mammals aboard a vessel; assess 

the level of consciousness; remove 

fishing gear; and return marine 

mammals to water. For further 

information regarding proposed 

handling procedures, please see section 

11.5 of SWFSC’s application. 

Trawl Survey Visual Monitoring and 

Operational Protocols 

Visual monitoring protocols, 

described above, are an integral 

component of trawl mitigation 

protocols. Observation of marine 

mammal presence and behaviors in the 

vicinity of SWFSC trawl survey 

operations allows for the application of 

professional judgment in determining 

the appropriate course of action to 

minimize the incidence of marine 

mammal gear interactions. 

The OOD, CS or other designated 

member of the scientific party, and crew 

standing watch on the bridge visually 

scan surrounding waters with the naked 

eye and rangefinding binoculars (or 

monocular) for marine mammals prior 

to, during, and until all trawl operations 

are completed. Some sets may be made 

at night or other limited visibility 

conditions, when visual observation 

may be conducted using the naked eye 

and available vessel lighting with 

limited effectiveness. 

Marine mammal watches will be 

initiated 15 minutes prior to arrival on 

station (or for the amount of time to 

travel between stations if less than 15 

minutes) to determine if marine 

mammals are near the planned trawl set 

location. Either dedicated observers, the 

OOD, CS, and/or crew standing watch 

will visually scan for marine mammals 

during all daytime operations. Marine 

mammal watches will be conducted 

using any binocular or monocular 

sighting instrument, with a means to 

estimate distance to infringing protected 

species during daytime, and the best 

available means of observation during 

nighttime observations. This typically 

occurs during transit leading up to 

arrival at the sampling station because 

of standard protocol of immediate 

deployment of trawl gear upon arriving 

at station (intended to reduce the risk of 

attracting curious marine mammals). 

However, in some cases it may be 

necessary to conduct a plankton tow 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3857 

prior to deploying trawl gear. In these 

cases, the visual watch will continue 

until trawl gear is ready to be deployed. 

Lookouts immediately alert the OOD 

and CS as to their best estimate of the 

species and number of animals observed 

and any observed animal’s distance, 

bearing, and direction of travel relative 

to the ship’s position. If any marine 

mammals are sighted around the vessel 

before setting gear, the vessel may be 

moved away from the animals to a 

different section of the sampling area if 

the animals appear to be at risk of 

interaction with the gear. This is what 

is referred to as the ‘‘move-on’’ rule. 

If marine mammals are sighted within 

1 nmi of the planned set location in the 

15 minutes before setting the gear, the 

vessel will transit to a different section 

of the sampling area to maintain a 

minimum set distance of 1 nmi. An 

exception to this protocol is for baleen 

whales; baleen whales are commonly 

observed within the 1 nmi distance from 

SWFSC trawl sampling locations but 

have never been observed to be attracted 

to SWFSC research activity and have 

never interacted with SWFSC research 

gear. Decision regarding the potential 

need to move-on in response to baleen 

whale presence will be made on the 

basis of professional judgment based on 

the specific circumstances. If after 

moving on, protected species remain 

within the 1 nmi exclusion zone, the CS 

or watch leader may decide to move 

again or to skip the station. However, 

SWFSC acknowledges that the 

effectiveness of visual monitoring may 

be limited depending on weather and 

lighting conditions, and it may not 

always be possible to conduct visual 

observations out to 1 nmi. The CS or 

watch leader will determine the best 

strategy to avoid potential takes of 

marine mammals based on the species 

encountered, their numbers and 

behavior, position and vector relative to 

the vessel, and other factors. For 

instance, a marine mammal transiting 

through the area off in the distance 

might only require a short move from 

the designated station while a pod of 

dolphins gathered around the vessel 

may require a longer move from the 

station or possibly cancellation if they 

follow the vessel. In any case, no gear 

will be deployed if marine mammals 

other than baleen whales have been 

sighted within 1 nmi of the planned set 

location during the 15-minute watch 

period. 

In many cases, trawl operations will 

be the first activity undertaken upon 

arrival at a new station, in order to 

reduce the opportunity to attract marine 

mammals to the vessel. However, in 

some cases it will be necessary to 

conduct plankton tows prior to 

deploying trawl gear in order to avoid 

trawling through extremely high 

densities of jellies and similar taxa that 

are numerous enough to severely 

damage trawl gear. 

Once the trawl net is in the water, the 

OOD, CS, and/or crew standing watch 

will continue to monitor the waters 

around the vessel and maintain a 

lookout for marine mammal presence as 

far away as environmental conditions 

allow. If marine mammals are sighted 

before the gear is fully retrieved, the 

most appropriate response to avoid 

incidental take will be determined by 

the professional judgment of the CS, 

watch leader, OOD and other 

experienced crew as necessary. This 

judgment will be based on their past 

experience operating gears around 

marine mammals and SWFSC training 

sessions that facilitate dissemination of 

expertise operating in these situations 

(e.g., factors that contribute to marine 

mammal gear interactions and those that 

aid in successfully avoiding these 

events). These judgments take into 

consideration the species, numbers, and 

behavior of the animals, the status of the 

trawl net operation (net opening, depth, 

and distance from the stern), the time it 

would take to retrieve the net, and 

safety considerations for changing speed 

or course. 

The appropriate course of action to 

minimize the risk of incidental take is 

determined by the professional 

judgment of the OOD, vessel operator, 

and the CS based on all situation 

variables, even if the choices 

compromise the value of the data 

collected at the station. We recognize 

that it is not possible to dictate in 

advance the exact course of action that 

the OOD or CS should take in any given 

event involving the presence of marine 

mammals in proximity to an ongoing 

trawl tow, given the sheer number of 

potential variables, combinations of 

variables that may determine the 

appropriate course of action, and the 

need to prioritize human safety in the 

operation of fishing gear at sea. 

Nevertheless, we require a full 

accounting of factors that shape both 

successful and unsuccessful decisions, 

and these details will be fed back into 

SWFSC training efforts and ultimately 

help to refine the best professional 

judgment that determines the course of 

action taken in any given scenario (see 

further discussion in Monitoring and 

Reporting). 

If trawling operations have been 

suspended because of the presence of 

marine mammals, the vessel will 

resume trawl operations (when 

practicable) only when the mammals 

have not been sighted within 1 nmi of 

the planned set location. This decision 

is at the discretion of the officer on 

watch and is dependent on the 

situation. 

Care will be taken when emptying the 

trawl to avoid damage to any marine 

mammals that may be caught in the gear 

but are not visible upon retrieval. The 

gear will be emptied as quickly as 

possible after retrieval in order to 

determine whether or not marine 

mammals, or any other protected 

species, are present. 

Standard survey protocols that are 

expected to lessen the likelihood of 

marine mammal interactions include 

standardized tow durations and 

distances. Standard tow durations of not 

more than 45 minutes at the target depth 

have been implemented, excluding 

deployment and retrieval time (which 

may require an additional 30 minutes 

depending on depth), to reduce the 

likelihood of attracting and incidentally 

taking marine mammals and other 

protected species. These short tow 

durations decrease the opportunity for 

curious marine mammals to find the 

vessel and investigate. Trawl tow 

distances are less than 3 nmi, which 

should reduce the likelihood of 

attracting and incidentally taking 

marine mammals. Typical tow distances 

are 1–2 nmi, depending on the survey 

and trawl speed. In addition, the 

vessel’s crew will clean trawl nets prior 

to deployment to remove prey items that 

might attract marine mammals. Catch 

volumes are typically small, with every 

attempt made to collect all organisms 

caught in the trawl. 

Marine Mammal Excluder Devices— 

The NETS Nordic 264 trawl gear will be 

fitted with MMEDs to allow marine 

mammals caught during trawling 

operations an opportunity to escape. 

These devices enable target species to 

pass through a grid or mesh barrier and 

into the codend while preventing the 

passage of marine mammals, which are 

ejected out through an escape opening 

or swim back out of the mouth of the 

net. Potential for interactions with 

protected species, such as marine 

mammals, is often greatest during the 

deployment and retrieval of the trawl, 

when the net is at or near the surface of 

the water. During retrieval of the net, 

protected species may become 

entangled in the net while attempting to 

feed from the codend as it floats near 

the surface of the water. Considerable 

effort has been given to developing 

MMEDs that allow marine mammals to 

escape from the net while allowing 

retention of the target species (e.g., 

Dotson et al., 2010). MMEDs generally 

consist of a large aluminum grate 

3858 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

positioned in the intermediate portion 

of the net forward of the codend and 

below an ‘‘escape panel’’ constructed 

into the upper net panel above the grate 

(Figure A–1 of SWFSC’s application). 

The angled aluminum grate is intended 

to guide marine mammals through the 

escape panel and prevent them from 

being caught in the codend (Dotson et 

al., 2010). MMEDs are currently 

deployed on all surveys using Nordic 

264 nets. 

Acoustic Deterrent Devices—Pingers 

will be deployed during all trawl 

operations and on all types of trawl 

nets. Two to four pingers will be placed 

along the footrope and/or headrope to 

discourage marine mammal 

interactions. 

Acoustic pingers are underwater 

sound emitting devices that are 

designed to decrease the probability of 

entanglement or unintended capture of 

marine mammals (see Appendix B of 

the SWFSC application). Acoustic 

pingers have been shown to effectively 

deter several species of small cetaceans 

from becoming entangled in gillnets and 

driftnets (for detailed discussion, please 

see 80 FR 8166). 

The CPS Survey uses the Netguard 70 

kHz dolphin pinger manufactured by 

Future Oceans and the Rockfish 

Recruitment and Ecosystem Assessment 

Surveys use the DDD–03H pinger 

manufactured by STM Products. Pingers 

remain operational at depths between 

10 m and 200 m. Tones range from 100 

microseconds to seconds in duration, 

with variable frequency of 5–500 kHz 

and maximum sound pressure level of 

176 dB rms re 1 mPa at 1 m at 30–80 

kHz. 

If one assumes that use of a pinger is 

effective in deterring marine mammals 

from interacting with fishing gear, one 

must therefore assume that receipt of 

the acoustic signal has a disturbance 

effect on those marine mammals (i.e., 

potential Level B harassment). However, 

Level B harassment that may be 

incurred as a result of SWFSC use of 

pingers does not constitute take that 

must be authorized under the MMPA. 

The MMPA prohibits the taking of 

marine mammals by U.S. citizens or 

within the U.S. EEZ unless such taking 

is appropriately permitted or 

authorized. However, the MMPA 

provides several narrowly defined 

exemptions from this requirement (e.g., 

for Alaskan natives; for defense of self 

or others; for Good Samaritans (16 

U.S.C. 1371(b)–(d))). Section 109(h) of 

the MMPA (16 U.S.C. 1379(h)) allows 

for the taking of marine mammals in a 

humane manner by Federal, state, or 

local government officials or employees 

in the course of their official duties if 

the taking is necessary for the protection 

or welfare of the mammal, the 

protection of the public health and 

welfare, or the non-lethal removal of 

nuisance animals. SWFSC use of 

pingers as a deterrent device, which 

may cause Level B harassment of marine 

mammals, is intended solely for the 

avoidance of potential marine mammal 

interactions with SWFSC research gear 

(i.e., avoidance of Level A harassment, 

serious injury, or mortality). Therefore, 

use of such deterrent devices, and the 

taking that may result, is for the 

protection and welfare of the mammal 

and is covered explicitly under MMPA 

section 109(h)(1)(A). Potential taking of 

marine mammals resulting from SWFSC 

use of pingers is not discussed further 

in this document. 

Longline Survey Visual Monitoring and 

Operational Protocols 

Visual monitoring requirements for all 

longline surveys are similar to the 

general protocols described above for 

trawl surveys. Please see that section for 

full details of the visual monitoring 

protocol and the move-on rule 

mitigation protocol. In summary, 

requirements for longline surveys are to: 

(1) Conduct visual monitoring prior to 

arrival on station; (2) implement the 

move-on rule if marine mammals are 

observed within the area around the 

vessel and may be at risk of interacting 

with the vessel or gear; (3) deploy gear 

as soon as possible upon arrival on 

station (depending on presence of 

marine mammals); and (4) maintain 

visual monitoring effort throughout 

deployment and retrieval of the longline 

gear. As was described for trawl gear, 

the OOD, CS, or watch leader will use 

best professional judgment to minimize 

the risk to marine mammals from 

potential gear interactions during 

deployment and retrieval of gear. If 

marine mammals are detected during 

setting operations and are considered to 

be at risk, immediate retrieval or 

suspension of operations may be 

warranted. If operations have been 

suspended because of the presence of 

marine mammals, the vessel will 

resume setting (when practicable) only 

when the animals are believed to have 

departed the area. If marine mammals 

are detected during retrieval operations 

and are considered to be at risk, haulback may be postponed. These decisions 

are at the discretion of the OOD/CS and 

are dependent on the situation. 

An exception is when California sea 

lions are sighted during the watch 

period prior to setting longline gear. For 

this species only, longline gear may be 

set if a group of 5 or fewer animals is 

sighted within 1 nmi of the planned set 

location; when groups of more than 5 

sea lions are sighted within 1 nmi of the 

sampling station, deployment of gear 

would be suspended. This exception 

has been defined considering the rarity 

of past interactions between this gear 

and California sea lions and in order to 

make this mitigation measure 

practicable to implement. Without it, 

given the density of California sea lions 

in the areas where longline surveys are 

conducted, the SWFSC believes 

implementing the move-on rule for a 

single animal would preclude sampling 

in some areas and introduce significant 

bias into survey results. Groups of five 

California sea lions or greater is believed 

to represent a trigger for the move-on 

rule that would allow sampling in areas 

where target species can be caught 

without increasing the number of 

interactions between marine mammals 

and research longline gear. This 

measure was implemented under the 

2015 rule, and no increase in sea lion 

take was observed, nor were multiple 

sea lions captured during any set. 

SWFSC is required to report occasions 

when the move-on rule is waived based 

on this exception. 

As for trawl surveys, some standard 

survey protocols are expected to 

minimize the potential for marine 

mammal interactions. SWFSC longline 

sets are conducted with drifting pelagic 

or anchored gear marked at both ends 

with buoys. Typical soak times are 2–4 

hours, but may be as long as 8 hours 

when targeting swordfish (measured 

from the time the last hook is in the 

water to when the first hook is brought 

out of the water). 

SWFSC longline protocols specifically 

prohibit chumming (releasing additional 

bait to attract target species to the gear). 

However, spent bait may be discarded 

during gear retrieval while gear is still 

in the water. In the experience of 

SWFSC, this practice increases survey 

efficiency and has not resulted in 

interactions with marine mammals. 

Scientist observations indicate 

pinnipeds do not gather immediately aft 

of the survey vessel as a result of 

discarding spent bait. However, if 

protected species interactions with 

longline gear increase, or if SWFSC staff 

observe that this practice is contributing 

to protected species interactions, the 

SWFSC will revisit this practice and 

consider the need to retain spent bait 

until no gear remains in the water. 

Purse Seine Survey Visual Monitoring 

and Operational Protocols 

Visual monitoring and operational 

protocols for purse seine surveys are 

similar to those described previously for 

trawl surveys, with a focus on visual 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3859 

observation in the survey area and 

avoidance of marine mammals that may 

be at risk of interaction with survey 

vessels or gear. The crew will keep 

watch for marine mammals before and 

during a set. If a bird or marine mammal 

observer is on board, the observer(s) 

inform the CS and captain of any marine 

mammals detected at or near a sampling 

station. Observations focus on 

avoidance of cetaceans (e.g., dolphins, 

and porpoises) and aggregations of 

pinnipeds. 

If any killer whales, dolphins, or 

porpoises are observed within 

approximately 500 m of the purse seine 

survey location, the set will be delayed. 

If any dolphins or porpoises are 

observed in the net, the net will be 

immediately opened to let the animals 

go. Pinnipeds may be attracted to fish 

caught in purse seine gear but are 

known to jump in and out of the net 

without entanglement. If pinnipeds are 

in the immediate area where the net is 

to be set, the set is delayed until the 

animals move out of the area or the 

station is abandoned. However, if fewer 

than five pinnipeds are seen in the 

vicinity but do not appear to be in the 

direct way of the setting operation, the 

net may be set. SWFSC is required to 

report occasions when the move-on rule 

is waived based on this exception. 

SWFSC also uses unmanned aerial 

systems (UAS) to conduct research. For 

pinnipeds, UAS flights will be at 100– 

200 ft depending on species (i.e., 100 ft 

for elephant seals and 200 ft for other 

species); in mixed aggregations, the 

most conservative altitude is used. 

UASs will not be flown directly over 

pinniped haulouts. 

We have carefully evaluated the 

SWFSC’s planned mitigation measures 

and considered a range of other 

measures in the context of ensuring that 

we prescribed the means of effecting the 

least practicable adverse impact on the 

affected marine mammal species and 

stocks and their habitat. Based on our 

evaluation of these measures, we have 

determined that these mitigation 

measures provide the means of effecting 

the least practicable adverse impact on 

marine mammal species or stocks and 

their habitat, paying particular attention 

to rookeries, mating grounds, and areas 

of similar significance, and on the 

availability of such species or stock for 

subsistence uses. 

Monitoring and Reporting 

In order to issue an LOA for an 

activity, Section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of the 

authorized taking. NMFS’s MMPA 

implementing regulations further 

describe the information that an 

applicant should provide when 

requesting an authorization (50 CFR 

216.104(a)(13)), including the means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

the level of taking or impacts on 

populations of marine mammals. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of significant 

interactions with marine mammal 

species in action area (e.g., animals that 

came close to the vessel, contacted the 

gear, or are otherwise rare or displaying 

unusual behavior); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) Action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or important physical 

components of marine mammal habitat); 

and 

• Mitigation and monitoring 

effectiveness. 

SWFSC plans to continue its 

systematic training, operations, data 

collection, animal handling and 

sampling protocols, etc., as refined 

through implementation of the 2015 

rule, in order to improve its ability to 

understand how mitigation measures 

influence interaction rates and ensure 

its research operations are conducted in 

an informed manner and consistent 

with lessons learned from those with 

experience operating these gears in 

close proximity to marine mammals. It 

is in this spirit that we plan to continue 

the monitoring requirements described 

below. 

Visual Monitoring 

Marine mammal watches are a 

standard part of conducting fisheries 

research activities, and are implemented 

as described previously in Mitigation. 

Dedicated marine mammal visual 

monitoring occurs as described (1) for 

some period prior to deployment of 

most research gear; (2) throughout 

deployment and active fishing of all 

research gears; (3) for some period prior 

to retrieval of longline gear; and (4) 

throughout retrieval of all research gear. 

This visual monitoring is performed by 

trained SWFSC personnel or other 

trained crew during the monitoring 

period. Observers record the species and 

estimated number of animals present 

and their behaviors, which may be 

valuable information towards an 

understanding of whether certain 

species may be attracted to vessels or 

certain survey gears. Separately, marine 

mammal watches are conducted by 

watch-standers (those navigating the 

vessel and other crew; these will 

typically not be SWFSC personnel) at all 

times when the vessel is being operated. 

The primary focus for this type of watch 

is to avoid striking marine mammals 

and to generally avoid navigational 

hazards. These watch-standers typically 

have other duties associated with 

navigation and other vessel operations 

and are not required to record or report 

to the scientific party data on marine 

mammal sightings, except when gear is 

being deployed or retrieved. 

SWFSC will also monitor disturbance 

of hauled-out pinnipeds resulting from 

the presence of researchers in the 

Antarctic, paying particular attention to 

the distance at which different species 

of pinniped are disturbed. Disturbance 

will be recorded according to the threepoint scale, representing increasing seal 

response to disturbance, shown in Table 

7. 

Training 

SWFSC anticipates that additional 

information on practices to avoid 

marine mammal interactions can be 

gleaned from training sessions and the 

continuation of systematic data 

collection standards. The SWFSC will 

conduct annual trainings for all chief 

scientists and other personnel who may 

be responsible for conducting marine 

mammal visual observations or 

handling incidentally captured marine 

mammals to explain mitigation 

measures and monitoring and reporting 

requirements, mitigation and 

monitoring protocols, marine mammal 

identification, recording of count and 

disturbance observations, completion of 

datasheets, and use of equipment. Some 

3860 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

of these topics may be familiar to 

SWFSC staff, who may be professional 

biologists; the SWFSC shall determine 

the agenda for these trainings and 

ensure that all relevant staff have 

necessary familiarity with these topics. 

Training typically includes three 

primary elements: (1) An overview of 

the purpose and need for the 

authorization, including mandatory 

mitigation measures by gear and the 

purpose for each, and species that 

SWFSC is authorized to incidentally 

take; (2) detailed descriptions of 

reporting, data collection, and sampling 

protocols; and (3) discussion of best 

professional judgment (which is 

recognized as an integral component of 

mitigation implementation; see 

Mitigation). 

The second topic includes instruction 

on how to complete data collection 

forms such as the marine mammal 

watch log, the incidental take form (e.g., 

specific gear configuration and details 

relevant to an interaction with protected 

species), and forms used for species 

identification and biological sampling. 

The third topic includes use of 

professional judgment in any incidents 

of marine mammal interaction and 

instructive examples where use of best 

professional judgment was determined 

to be successful or unsuccessful. We 

recognize that many factors come into 

play regarding decision-making at sea 

and that it is not practicable to simplify 

what are inherently variable and 

complex situational decisions into rules 

that may be defined on paper. However, 

it is our intent that use of best 

professional judgment be an iterative 

process from year to year, in which any 

at-sea decision-maker (i.e., responsible 

for decisions regarding the avoidance of 

marine mammal interactions with 

survey gear through the application of 

best professional judgment) learns from 

the prior experience of all relevant 

SWFSC personnel (rather than from 

solely their own experience). The 

outcome should be increased 

transparency in decision-making 

processes where best professional 

judgment is appropriate and, to the 

extent possible, some degree of 

standardization across common 

situations, with an ultimate goal of 

reducing marine mammal interactions. 

It is the responsibility of the SWFSC to 

facilitate such exchange. 

To reduce marine mammal takes over 

time, the SWFSC maximizes efficient 

use of charter and NOAA ship time, and 

engages in operational planning with 

the NMFS Northwest and Pacific Islands 

Fisheries Science Centers to delineate 

respective research responsibilities and 

to reduce duplication of effort among 

the Centers. 

Handling Procedures and Data 

Collection 

Improved standardization of handling 

procedures were discussed previously 

in Mitigation. In addition to the benefits 

implementing these protocols are 

believed to have on the animals through 

increased post-release survival, SWFSC 

believes adopting these protocols for 

data collection will also increase the 

information on which ‘‘serious injury’’ 

determinations are based and improve 

scientific knowledge about marine 

mammals that interact with fisheries 

research gears and the factors that 

contribute to these interactions. SWFSC 

personnel are provided standard 

guidance and training regarding 

handling of marine mammals, including 

how to identify different species, bring 

an individual aboard a vessel, assess the 

level of consciousness, remove fishing 

gear, return an individual to water and 

log activities pertaining to the 

interaction. 

SWFSC will record interaction 

information on their own standardized 

forms. To aid in serious injury 

determinations and comply with the 

current NMFS Serious Injury Guidelines 

(NMFS, 2012a, 2012b), researchers will 

also answer a series of supplemental 

questions on the details of marine 

mammal interactions. Finally, for any 

marine mammals that are killed during 

fisheries research activities, scientists 

will collect data and samples as 

appropriate. 

Reporting 

As is normally the case, SWFSC will 

coordinate with the relevant stranding 

coordinators for any unusual marine 

mammal behavior and any stranding, 

beached live/dead, or floating marine 

mammals that are encountered during 

field research activities. In addition, 

Chief Scientists (or cruise leader, CS) 

will provide reports to SWFSC 

leadership and to the Office of Protected 

Resources (OPR). As a result, when 

marine mammals interact with survey 

gear, whether killed or released alive, a 

report provided by the CS will fully 

describe any observations of the 

animals, the context (vessel and 

conditions), decisions made and 

rationale for decisions made in vessel 

and gear handling. The circumstances of 

these events are critical in enabling 

SWFSC and OPR to better evaluate the 

conditions under which takes are most 

likely occur. We believe in the long term 

this will allow the avoidance of these 

types of events in the future. 

The SWFSC will submit annual 

summary reports to OPR including: (1) 

Annual line-kilometers surveyed during 

which the predominant acoustic 

systems were used (see ‘‘Estimated Take 

by Acoustic Harassment’’ for further 

discussion), specific to each region; (2) 

summary information regarding use of 

all hook and line, purse seine, and trawl 

gear, including number of sets, tows, 

etc., specific to each research area and 

gear; (3) accounts of all incidents of 

marine mammal interactions, including 

circumstances of the event and 

descriptions of any mitigation 

procedures implemented or not 

implemented and why; (4) information 

related to occasions when the move-on 

rule was waived based on occurrence of 

groups of California sea lions; (5) 

summary information related to any onice disturbance of pinnipeds, including 

raw sightings data and the eventspecific total counts of animals present, 

counts of reactions according to a threepoint scale of response severity and 

numbers of takes (differentiated by 

species and age class), the distance at 

which a pinniped is disturbed and the 

closest point of approach for each 

disturbance event; and (6) a written 

evaluation of the effectiveness of 

SWFSC mitigation strategies in reducing 

the number of marine mammal 

interactions with survey gear, including 

best professional judgment and 

suggestions for changes to the mitigation 

strategies, if any. The period of 

reporting will be annually, and the 

report must be submitted not less than 

ninety days following the end of a given 

year. Submission of this information is 

in service of an adaptive management 

framework allowing NMFS to make 

appropriate modifications to mitigation 

and/or monitoring strategies, as 

necessary, during the five-year period of 

validity for these regulations. 

NMFS has established a formal 

incidental take reporting system, the 

Protected Species Incidental Take 

(PSIT) database, requiring that 

incidental takes of protected species be 

reported within 48 hours of the 

occurrence. The PSIT generates 

automated messages to NMFS 

leadership and other relevant staff, 

alerting them to the event and to the fact 

that updated information describing the 

circumstances of the event has been 

inputted to the database. The PSIT and 

CS reports not only provide valuable 

real-time reporting and information 

dissemination tools but also serve as an 

archive of information that may be 

mined in the future to study why takes 

occur by species, gear, region, etc. 

SWFSC will also collect and report all 

necessary data, to the extent practicable 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3861 

given the primacy of human safety and 

the well-being of captured or entangled 

marine mammals, to facilitate serious 

injury (SI) determinations for marine 

mammals that are released alive. 

SWFSC will require that the CS 

complete data forms and address 

supplemental questions, both of which 

have been developed to aid in SI 

determinations. SWFSC understands the 

critical need to provide as much 

relevant information as possible about 

marine mammal interactions to inform 

decisions regarding SI determinations. 

In addition, the SWFSC will perform all 

necessary reporting to ensure that any 

incidental M/SI is incorporated as 

appropriate into relevant SARs. 

Negligible Impact Analysis and 

Determinations 

Introduction—NMFS has defined 

negligible impact 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 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

by mortality, serious injury, and Level A 

or Level B harassment, we consider 

other factors, such as the likely nature 

of any behavioral responses (e.g., 

intensity, duration), the context of any 

such responses (e.g., critical 

reproductive time or location, 

migration), as well as effects on habitat, 

and the likely effectiveness of 

mitigation. We also assess the number, 

intensity, and context of estimated takes 

by evaluating this information relative 

to population status. Consistent with the 

1989 preamble for NMFS’s 

implementing regulations (54 FR 40338; 

September 29, 1989), the impacts from 

other past and ongoing anthropogenic 

activities are incorporated into this 

analysis via their impacts on the 

baseline (e.g., as reflected in the 

regulatory status of the species, 

population size and growth rate where 

known, ongoing sources of humancaused mortality, and specific 

consideration of take by M/SI 

previously authorized for other NMFS 

research activities). 

We note here that the takes from 

potential gear interactions enumerated 

below could result in non-serious 

injury, but their worst potential 

outcome (mortality) is analyzed for the 

purposes of the negligible impact 

determination. We discuss here the 

connection, and differences, between 

the legal mechanisms for authorizing 

incidental take under section 101(a)(5) 

for activities such as SWFSC’s research 

activities, and for authorizing incidental 

take from commercial fisheries. In 1988, 

Congress amended the MMPA’s 

provisions for addressing incidental 

take of marine mammals in commercial 

fishing operations. Congress directed 

NMFS to develop and recommend a 

new long-term regime to govern such 

incidental taking (see MMC, 1994). The 

need to develop a system suited to the 

unique circumstances of commercial 

fishing operations led NMFS to suggest 

a new conceptual means and associated 

regulatory framework. That concept, 

PBR, and a system for developing plans 

containing regulatory and voluntary 

measures to reduce incidental take for 

fisheries that exceed PBR were 

incorporated as sections 117 and 118 in 

the 1994 amendments to the MMPA. 

PBR is defined in section 3 of the 

MMPA (16 U.S.C. 1362(20)) as the 

maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population (OSP) and, although not 

controlling, can be one measure 

considered among other factors when 

evaluating the effects of M/SI on a 

marine mammal species or stock during 

the section 101(a)(5)(A) process. OSP is 

defined in section 3 of the MMPA (16 

U.S.C. 1362(9)) as the number of 

animals which will result in the 

maximum productivity of the 

population or the species, keeping in 

mind the carrying capacity of the habitat 

and the health of the ecosystem of 

which they form a constituent element. 

Through section 2, an overarching goal 

of the statute is to ensure that each 

species or stock of marine mammal is 

maintained at or returned to its OSP. 

PBR values are calculated by NMFS as 

the level of annual removal from a stock 

that will allow that stock to equilibrate 

within OSP at least 95 percent of the 

time, and is the product of factors 

relating to the minimum population 

estimate of the stock (Nmin), the 

productivity rate of the stock at a small 

population size, and a recovery factor. 

Determination of appropriate values for 

these three elements incorporates 

significant precaution, such that 

application of the parameter to the 

management of marine mammal stocks 

may be reasonably certain to achieve the 

goals of the MMPA. For example, 

calculation of Nmin incorporates the 

precision and variability associated with 

abundance information, while also 

providing reasonable assurance that the 

stock size is equal to or greater than the 

estimate (Barlow et al., 1995). In 

general, the three factors are developed 

on a stock-specific basis in 

consideration of one another in order to 

produce conservative PBR values that 

appropriately account for both 

imprecision that may be estimated, as 

well as potential bias stemming from 

lack of knowledge (Wade, 1998). 

Congress called for PBR to be applied 

within the management framework for 

commercial fishing incidental take 

under section 118 of the MMPA. As a 

result, PBR cannot be applied 

appropriately outside of the section 118 

regulatory framework without 

consideration of how it applies within 

the section 118 framework, as well as 

how the other statutory management 

frameworks in the MMPA differ from 

the framework in section 118. PBR was 

not designed and is not used as an 

absolute threshold limiting commercial 

fisheries. Rather, it serves as a means to 

evaluate the relative impacts of those 

activities on marine mammal stocks. 

Even where commercial fishing is 

causing M/SI at levels that exceed PBR, 

the fishery is not suspended. When M/ 

SI exceeds PBR in the commercial 

fishing context under section 118, 

NMFS may develop a take reduction 

plan, usually with the assistance of a 

take reduction team. The take reduction 

plan will include measures to reduce 

and/or minimize the taking of marine 

mammals by commercial fisheries to a 

level below the stock’s PBR. That is, 

where the total annual human-caused 

M/SI exceeds PBR, NMFS is not 

required to halt fishing activities 

contributing to total M/SI but rather 

utilizes the take reduction process to 

further mitigate the effects of fishery 

activities via additional bycatch 

reduction measures. In other words, 

under section 118 of the MMPA, PBR 

does not serve as a strict cap on the 

operation of commercial fisheries that 

may incidentally take marine mammals. 

Similarly, to the extent PBR may be 

relevant when considering the impacts 

of incidental take from activities other 

than commercial fisheries, using it as 

the sole reason to deny (or issue) 

incidental take authorization for those 

activities would be inconsistent with 

Congress’s intent under section 

101(a)(5), NMFS’ long-standing 

regulatory definition of ‘‘negligible 

impact,’’ and the use of PBR under 

section 118. The standard for 

authorizing incidental take for activities 

other than commercial fisheries under 

section 101(a)(5) continues to be, among 

3862 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

other things that are not related to PBR, 

whether the total taking will have a 

negligible impact on the species or 

stock. Nowhere does section 

101(a)(5)(A) reference use of PBR to 

make the negligible impact finding or 

authorize incidental take through multiyear regulations, nor does its companion 

provision at 101(a)(5)(D) for authorizing 

non-lethal incidental take under the 

same negligible-impact standard. NMFS’ 

MMPA implementing regulations state 

that take has a negligible impact when 

it does not adversely affect the species 

or stock through effects on annual rates 

of recruitment or survival—likewise 

without reference to PBR. When 

Congress amended the MMPA in 1994 

to add section 118 for commercial 

fishing, it did not alter the standards for 

authorizing non-commercial fishing 

incidental take under section 101(a)(5), 

implicitly acknowledging that the 

negligible impact standard under 

section 101(a)(5) is separate from the 

PBR metric under section 118. In fact, 

in 1994 Congress also amended section 

101(a)(5)(E) (a separate provision 

governing commercial fishing incidental 

take for species listed under the 

Endangered Species Act) to add 

compliance with the new section 118 

but retained the standard of the 

negligible impact finding under section 

101(a)(5)(A) (and section 101(a)(5)(D)), 

showing that Congress understood that 

the determination of negligible impact 

and application of PBR may share 

certain features but are, in fact, 

different. 

Since the introduction of PBR in 

1994, NMFS had used the concept 

almost entirely within the context of 

implementing sections 117 and 118 and 

other commercial fisheries managementrelated provisions of the MMPA. Prior 

to the Court’s ruling in Conservation 

Council for Hawaii v. National Marine 

Fisheries Service, 97 F. Supp. 3d 1210 

(D. Haw. 2015) and consideration of 

PBR in a series of section 101(a)(5) 

rulemakings, there were a few examples 

where PBR had informed agency 

deliberations under other MMPA 

sections and programs, such as playing 

a role in the issuance of a few scientific 

research permits and subsistence 

takings. But as the Court found when 

reviewing examples of past PBR 

consideration in Georgia Aquarium v. 

Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. 

2015), where NMFS had considered 

PBR outside the commercial fisheries 

context, ‘‘it has treated PBR as only one 

‘quantitative tool’ and [has not used it] 

as the sole basis for its impact 

analyses.’’ Further, the agency’s 

thoughts regarding the appropriate role 

of PBR in relation to MMPA programs 

outside the commercial fishing context 

have evolved since the agency’s early 

application of PBR to section 101(a)(5) 

decisions. Specifically, NMFS’ denial of 

a request for incidental take 

authorization for the U.S. Coast Guard 

in 1996 seemingly was based on the 

potential for lethal take in relation to 

PBR and did not appear to consider 

other factors that might also have 

informed the potential for ship strike in 

relation to negligible impact (61 FR 

54157; October 17, 1996). 

The MMPA requires that PBR be 

estimated in SARs and that it be used 

in applications related to the 

management of take incidental to 

commercial fisheries (i.e., the take 

reduction planning process described in 

section 118 of the MMPA and the 

determination of whether a stock is 

‘‘strategic’’ as defined in section 3), but 

nothing in the statute requires the 

application of PBR outside the 

management of commercial fisheries 

interactions with marine mammals. 

Nonetheless, NMFS recognizes that as a 

quantitative metric, PBR may be useful 

as a consideration when evaluating the 

impacts of other human-caused 

activities on marine mammal stocks. 

Outside the commercial fishing context, 

and in consideration of all known 

human-caused mortality, PBR can help 

inform the potential effects of M/SI 

requested to be authorized under 

101(a)(5)(A). As noted by NMFS and the 

U.S. Fish and Wildlife Service in our 

implementation regulations for the 1986 

amendments to the MMPA (54 FR 

40341, September 29, 1989), the 

Services consider many factors, when 

available, in making a negligible impact 

determination, including, but not 

limited to, the status of the species or 

stock relative to OSP (if known); 

whether the recruitment rate for the 

species or stock is increasing, 

decreasing, stable, or unknown; the size 

and distribution of the population; and 

existing impacts and environmental 

conditions. In this multi-factor analysis, 

PBR can be a useful indicator for when, 

and to what extent, the agency should 

take an especially close look at the 

circumstances associated with the 

potential mortality, along with any other 

factors that could influence annual rates 

of recruitment or survival. 

When considering PBR during 

evaluation of effects of M/SI under 

section 101(a)(5)(A), we first calculate a 

metric for each species or stock that 

incorporates information regarding 

ongoing anthropogenic M/SI into the 

PBR value (i.e., PBR minus the total 

annual anthropogenic mortality/serious 

injury estimate in the SAR), which is 

called ‘‘residual PBR’’ (Wood et al., 

2012). We first focus our analysis on 

residual PBR because it incorporates 

anthropogenic mortality occurring from 

other sources. If the ongoing humancaused mortality from other sources 

does not exceed PBR, then residual PBR 

is a positive number, and we consider 

how the anticipated or potential 

incidental M/SI from the activities being 

evaluated compares to residual PBR 

using the framework in the following 

paragraph. If the ongoing anthropogenic 

mortality from other sources already 

exceeds PBR, then residual PBR is a 

negative number and we consider the 

M/SI from the activities being evaluated 

as described further below. 

When ongoing total anthropogenic 

mortality from the applicant’s specified 

activities does not exceed PBR and 

residual PBR is a positive number, as a 

simplifying analytical tool we first 

consider whether the specified activities 

could cause incidental M/SI that is less 

than 10 percent of residual PBR (the 

‘‘insignificance threshold,’’ see below). 

If so, we consider M/SI from the 

specified activities to represent an 

insignificant incremental increase in 

ongoing anthropogenic M/SI for the 

marine mammal stock in question that 

alone (i.e., in the absence of any other 

take) will not adversely affect annual 

rates of recruitment and survival. As 

such, this amount of M/SI would not be 

expected to affect rates of recruitment or 

survival in a manner resulting in more 

than a negligible impact on the affected 

stock unless there are other factors that 

could affect reproduction or survival, 

such as Level A and/or Level B 

harassment, or other considerations 

such as information that illustrates 

uncertainty involved in the calculation 

of PBR for some stocks. In a few prior 

incidental take rulemakings, this 

threshold was identified as the 

‘‘significance threshold,’’ but it is more 

accurately labeled an insignificance 

threshold, and so we use that 

terminology here. Assuming that any 

additional incidental take by Level A or 

Level B harassment from the activities 

in question would not combine with the 

effects of the authorized M/SI to exceed 

the negligible impact level, the 

anticipated M/SI caused by the 

activities being evaluated would have a 

negligible impact on the species or 

stock. However, M/SI above the 10 

percent insignificance threshold does 

not indicate that the M/SI associated 

with the specified activities is 

approaching a level that would 

necessarily exceed negligible impact. 

Rather, the 10 percent insignificance 

threshold is meant only to identify 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3863 

instances where additional analysis of 

the anticipated M/SI is not required 

because the negligible impact standard 

clearly will not be exceeded on that 

basis alone. 

Where the anticipated M/SI is near, 

at, or above residual PBR, consideration 

of other factors (positive or negative), 

including those outlined above, as well 

as mitigation is especially important to 

assessing whether the M/SI will have a 

negligible impact on the species or 

stock. PBR is a conservative metric and 

not sufficiently precise to serve as an 

absolute predictor of population effects 

upon which mortality caps would 

appropriately be based. For example, in 

some cases stock abundance (which is 

one of three key inputs into the PBR 

calculation) is underestimated because 

marine mammal survey data within the 

U.S. EEZ are used to calculate the 

abundance even when the stock range 

extends well beyond the U.S. EEZ. An 

underestimate of abundance could 

result in an underestimate of PBR. 

Alternatively, we sometimes may not 

have complete M/SI data beyond the 

U.S. EEZ to compare to PBR, which 

could result in an overestimate of 

residual PBR. The accuracy and 

certainty around the data that feed any 

PBR calculation, such as the abundance 

estimates, must be carefully considered 

to evaluate whether the calculated PBR 

accurately reflects the circumstances of 

the particular stock. M/SI that exceeds 

PBR may still potentially be found to be 

negligible in light of other factors that 

offset concern, especially when robust 

mitigation and adaptive management 

provisions are included. 

PBR was designed as a tool for 

evaluating mortality and is defined as 

the number of animals that can be 

removed while allowing that stock to 

reach or maintain its OSP. OSP is 

defined as a population that falls within 

a range from the population level that is 

the largest supportable within the 

ecosystem to the population level that 

results in maximum net productivity, 

and thus is an aspirational management 

goal of the overall statute with no 

specific timeframe by which it should 

be met. PBR is designed to ensure 

minimal deviation from this overarching 

goal, with the formula for PBR typically 

ensuring that growth towards OSP is not 

reduced by more than 10 percent (or 

equilibrates to OSP 95 percent of the 

time). As PBR is applied by NMFS, it 

provides that growth toward OSP is not 

reduced by more than 10 percent, which 

certainly allows a stock to reach or 

maintain its OSP in a conservative and 

precautionary manner—and we can 

therefore clearly conclude that if PBR 

were not exceeded, there would not be 

adverse effects on the affected species or 

stocks. Nonetheless, it is equally clear 

that in some cases the time to reach this 

aspirational OSP level could be slowed 

by more than 10 percent (i.e., total 

human-caused mortality in excess of 

PBR could be allowed) without 

adversely affecting a species or stock 

through effects on its rates of 

recruitment or survival. Thus even in 

situations where the inputs to calculate 

PBR are thought to accurately represent 

factors such as the species’ or stock’s 

abundance or productivity rate, it is still 

possible for incidental take to have a 

negligible impact on the species or stock 

even where M/SI exceeds residual PBR 

or PBR. 

PBR is helpful in informing the 

analysis of the effects of mortality on a 

species or stock because it is important 

from a biological perspective to be able 

to consider how the total mortality in a 

given year may affect the population. 

However, section 101(a)(5)(A) of the 

MMPA indicates that NMFS shall 

authorize the requested incidental take 

from a specified activity if we find that 

the total of such taking [i.e., from the 

specified activity] will have a negligible 

impact on such species or stock. In 

other words, the task under the statute 

is to evaluate the applicant’s anticipated 

take in relation to their take’s impact on 

the species or stock, not other entities’ 

impacts on the species or stock. Neither 

the MMPA nor NMFS’ implementing 

regulations call for consideration of 

other unrelated activities and their 

impacts on the species or stock. In fact, 

in response to public comments on the 

implementing regulations NMFS 

explained that such effects are not 

considered in making negligible impact 

findings under section 101(a)(5), 

although the extent to which a species 

or stock is being impacted by other 

anthropogenic activities is not ignored. 

Such effects are reflected in the baseline 

of existing impacts as reflected in the 

species’ or stock’s abundance, 

distribution, reproductive rate, and 

other biological indicators. 

Our evaluation of the M/SI for each of 

the species and stocks for which M/SI 

could occur follows. In addition, all 

mortality authorized for some of the 

same species or stocks over the next 

several years pursuant to our final 

rulemakings for the NMFS Alaska 

Fisheries Science Center (AFSC) and the 

NMFS Northwest Fisheries Science 

Center (NWFSC) has been incorporated 

into the residual PBR. By considering 

the maximum potential incidental M/SI 

in relation to PBR and ongoing sources 

of anthropogenic mortality, we begin 

our evaluation of whether the potential 

incremental addition of M/SI through 

SWFSC research activities may affect 

the species’ or stocks’ annual rates of 

recruitment or survival. We also 

consider the interaction of those 

mortalities with incidental taking of that 

species or stock by harassment pursuant 

to the specified activity. 

We first consider maximum potential 

incidental M/SI for each stock (Table 6) 

in consideration of NMFS’s threshold 

for identifying insignificant M/SI take 

(10 percent of residual PBR (69 FR 

43338; July 20, 2004)). By considering 

the maximum potential incidental M/SI 

in relation to PBR and ongoing sources 

of anthropogenic mortality, we begin 

our evaluation of whether the potential 

incremental addition of M/SI through 

SWFSC research activities may affect 

the species’ or stock’s annual rates of 

recruitment or survival. We also 

consider the interaction of those 

mortalities with incidental taking of that 

species or stock by harassment pursuant 

to the specified activity. 

Summary of Estimated Incidental Take 

Here we provide a summary of the 

total incidental take authorization on an 

annual basis, as well as other 

information relevant to the negligible 

impact analysis. Table 9 shows 

information relevant to our negligible 

impact analysis concerning the total 

annual taking that could occur for each 

stock from NMFS’ scientific research 

activities when considering incidental 

take that may be authorized for SWFSC, 

as well as take previously authorized for 

AFSC (84 FR 46788; September 5, 2019) 

and NWFSC (83 FR 36370; July 27, 

2018). We authorize take by M/SI over 

the five-year period of validity for these 

regulations as indicated in Table 9 

below. As noted previously, although 

some gear interactions may result in 

Level A harassment or the release of an 

uninjured animal, for the purposes of 

the negligible impact analysis, we 

assume that all of these takes could 

potentially be in the form of M/SI. Table 

9 also summarizes annual amounts of 

take by Level B harassment that may be 

authorized. 

We previously authorized take of 

marine mammals incidental to fisheries 

research operations conducted by the 

AFSC (see 83 FR 37638 and 84 FR 

46788), and NWFSC (see 81 FR 38516 

and 83 FR 36370). This take would 

occur to some of the same stocks for 

which we may authorize take incidental 

to SWFSC fisheries research operations. 

Therefore, in order to evaluate the likely 

impact of the take by M/SI in this rule, 

we consider not only other ongoing 

sources of human-caused mortality but 

the potential mortality authorized for 

AFSC/NWFSC. As used in this 

3864 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

document, other ongoing sources of 

human-caused (anthropogenic) 

mortality refers to estimates of realized 

or actual annual mortality reported in 

the SARs and does not include 

authorized or unknown mortality. 

Below, we consider the total taking by 

M/SI for SWFSC and previously 

authorized for AFSC/NWFSC together to 

produce a maximum annual M/SI take 

level (including take of unidentified 

marine mammals that could accrue to 

any relevant stock) and compare that 

value to the stock’s PBR value, 

considering ongoing sources of 

anthropogenic mortality. PBR and 

annual M/SI values considered in Table 

9 reflect the most recent information 

available (i.e., 2019 SARs). 

TABLE 9—SUMMARY INFORMATION RELATED TO SWFSC ANNUAL TAKE AUTHORIZATION, 2020–25 (CCE) 

Species 1 Stock 

Annual Level 

B harassment 

authorization 

Percent of 

estimated 

population 

abundance 2

SWFSC total 

M/SI 

authorization, 

2020–25 3

AFSC/NWFSC 

total M/SI 

authorization 

Estimated 

maximum 

annual 

M/SI 4

PBR minus 

annual M/SI 

(%) 5

Gray whale ......................... ENP .................................... 533 2.0 0 0 0 n/a 

Humpback whale ................ CA/OR/WA ......................... 23 0.8 0 0 0 n/a 

Minke whale ....................... Alaska ................................ 19 3.0 0 0 0 n/a 

Sei whale ............................ CA/OR/WA ......................... 10 1.9 0 0 0 n/a 

Fin whale ............................ CA/OR/WA ......................... 124 1.4 0 0 0 n/a 

Blue whale .......................... ENP .................................... 18 1.2 0 0 0 n/a 

Sperm whale ...................... CA/OR/WA ......................... 96 4.8 0 0 0 n/a 

Kogia spp ........................... CA/OR/WA ......................... 213 5.2 2 1 0.6 19.2 (3.1) 

Cuvier’s beaked whale ....... CA/OR/WA ......................... 160 4.9 0 0 0 n/a 

Baird’s beaked whale ......... CA/OR/WA ......................... 72 2.7 0 0 0 n/a 

Mesoplodont beaked 

whales.

CA/OR/WA ......................... 84 2.8 0 0 0 n/a 

Bottlenose dolphin .............. CA/OR/WA Offshore .......... 62 3.2 9 3 2.8 9.4 (29.8) 

CA Coastal ......................... 13.7 3 0 0.8 0.7 (114.3) 

Striped dolphin ................... CA/OR/WA ......................... 883 3.0 14 7 4.6 237.2 (1.9) 

Common dolphin (shortbeaked).CA/OR/WA ......................... 14,430 1.4 14 4 4 621.6 (0.6) 

Common dolphin (longbeaked).California ............................ 1,425 1.5 14 2 3.6 8,353 (0.0) 

Pacific white-sided dolphin CA/OR/WA ......................... 412 1.5 41 31 14.8 9 183.5 (8.1) 

Northern right whale dolphin.CA/OR/WA ......................... 614 2.3 11 7 4 175.2 (2.3) 

Risso’s dolphin ................... CA/OR/WA ......................... 209 3.3 14 9 5 42.3 (11.8) 

Killer whale ......................... ENP Offshore ..................... 13 4.3 0 0 n/a n/a 

West Coast Transient ........ 5.3 0 0 n/a n/a 

ENP Southern Resident ..... 17.3 0 0 n/a n/a 

Short-finned pilot whale ...... CA/OR/WA ......................... 30 3.6 2 2 0.8 3.3 (24.2) 

Harbor porpoise .................. Morro Bay .......................... 675 15.9 6 6 2 2 65.6 (3.0) 

Monterey Bay ..................... 19.5 2 22.8 (8.8) 

San Francisco-Russian 

River.

9.0 2 47.4 (4.2) 

Northern CA/Southern OR 2.8 2 348.8 (0.6) 

Northern OR/WA Coast ..... 3.1 6 4 2.4 148 (1.6) 

Dall’s porpoise .................... CA/OR/WA ......................... 916 3.6 6 4 2.4 171.7 (1.4) 

Guadalupe fur seal ............. Mexico-CA .......................... 313 0.9 0 0 0 n/a 

Northern fur seal ................ Pribilof Islands/Eastern Pacific.12,595 8 2.0 5 7 18–23 6.2 10,896 (0.1) 

California ............................ 8 2.0 7 5–13 4.2 449.2 (0.9) 

California sea lion ............... United States ..................... 5,095 2.0 30 11 9.2 9 13,690 (0.1) 

Steller sea lion .................... Eastern U.S ........................ 914 2.1 10 7 16–21 7 2,480 (0.3) 

Harbor seal ......................... California ............................ 1,114 3.6 14 6 6 4.8 1,598 (0.3) 

OR/WA Coast .................... 4.5 6 8 5.2 ? 

Northern elephant seal ....... California Breeding ............ 4,916 2.7 5 1 1.6 4,873.2 (0.0) 

1For some species with multiple stocks, indicated level of take could occur to individuals from any stock (as indicated in table). For some stocks, a range is presented. 2For species with multiple potentially affected stocks, value is conservatively calculated as though all estimated annual takes accrue to each potentially affected 

stock. 3As explained earlier in this document, gear interaction could result in mortality, serious injury, or Level A harassment. Because we do not have sufficient information to enable us to parse out these outcomes, we present such take as a pool. For purposes of this negligible impact analysis we assume the worst case scenario 

(that all such takes incidental to research activities result in mortality). 4This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock as a result of NMFS’ fisheries research 

activities and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To reach this total, we add one to the total for 

each pinniped and cetacean that may be captured in trawl gear and one to the total for each pinniped that may be captured in hook and line gear. This represents 

the potential that the take of an unidentified pinniped or cetacean could accrue to any given stock captured in that gear in that area. The take authorization number is 

formulated as a five-year total; the annual average is used only for purposes of negligible impact analysis. We recognize that portions of an animal may not be taken 

in a given year. 5This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI, which is 

presented in the SARs) (see Table 1). In parentheses, we provide the estimated maximum annual M/SI expressed as a percentage of this value. 6A total of 4 takes of harbor porpoise by M/SI were authorized incidental to NWFSC research occurring offshore CA/OR/WA. However, two of these were expected 

to occur in the lower Columbia River. Therefore, a maximum of 4 takes could accrue to the Northern OR/WA Coast stock, while a maximum of only 2 of those takes 

could potentially accrue to the remaining stocks of harbor porpoise. A total of 7 takes of harbor seal by M/SI were authorized incidental to NWFSC research occurring 

offshore CA/OR/WA. However, two of these were expected to occur in the lower Columbia River. Therefore, a maximum of 7 takes could accrue to the OR/WA Coast 

stock, while a maximum of only 5 of those takes could potentially accrue to the California stock of harbor seal. One take of each stock by M/SI was authorized incidental to AFSC research. 7These ranges reflect that, as part of the overall take authorization for AFSC, a total of five takes of northern fur seals and Steller sea lions are expected to occur 

as a result specifically of International Pacific Halibut Commission longline operations. These five takes are considered as potentially accruing to either stock of northern fur seal or to either the eastern or western stocks of Steller sea lion; therefore, we assess the consequences of the take authorization for these stocks as though 

the maximum could occur for that stock. 8 Calculated on the basis of assumed relative abundance; i.e., we would expect on the basis of relative abundance in the study area that approximately 98 percent 

of Level B harassment would accrue to the Pribilof Islands/Eastern Pacific stock and approximately two percent would accrue to the California stock. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3865 

9 Calculation of residual PBR for these stocks includes M/SI that occurred incidental to SWFSC research activities. Assumed annual M/SI due to SWFSC is accounted for in this calculation through the take authorization number. Therefore, the assumed effects of SWFSC research on these stocks is overestimated as the 

take numbers are incorporated to the calculation through both the reduction of ‘‘available’’ PBR due to past interactions as well as through the take number that is 

then evaluated against the residual PBR. 

TABLE 10—ANNUAL TAKE AUTHORIZATION IN THE AMLR, 2020–25 

Species 

Estimated 

annual 

Level B 

harassment 

(acoustic 

exposure) 

Estimated 

annual 

Level B 

harassment 

(on-ice 

disturbance) 

Total annual 

Level B 

harassment 

authorization 

Percent of 

estimated 

population 

Southern right whale ........................................................................................ 0 0 0 n/a 

Humpback whale ............................................................................................. 25 0 25 0.3 

Antarctic minke whale ...................................................................................... 5 0 5 0.0 

Fin whale ......................................................................................................... 57 0 57 1.2 

Blue whale ....................................................................................................... 0 0 0 n/a 

Sperm whale .................................................................................................... 5 0 5 0.0 

Arnoux’ beaked whale 1 ................................................................................... 2 0 2 ? 

Southern bottlenose whale .............................................................................. 10 0 10 0.0 

Hourglass dolphin ............................................................................................ 10 0 10 0.0 

Killer whale ...................................................................................................... 10 0 10 0.0 

Long-finned pilot whale .................................................................................... 21 0 21 0.0 

Spectacled porpoise 1 ...................................................................................... 10 0 10 ? 

Antarctic fur seal .............................................................................................. 136 417 553 0.0

Southern elephant seal .................................................................................... 2 5 7 0.0 

Weddell seal .................................................................................................... 74 225 224 2 0.1 

Crabeater seal ................................................................................................. 884 2,704 3,588 2 0.1 

Leopard seal .................................................................................................... 22 68 90 2 0.0 

1There is no available abundance information for these species. See Small Numbers below for further discussion. 

2A range is provided for these species’ abundance. We have used the lower bound of the given range for calculation of these values. 

Analysis—To avoid repetition, the 

majority of our analysis applies to all 

the species listed in Tables 9–10, given 

that the anticipated effects of SWFSC’s 

research activities on marine mammals 

are expected to be relatively similar in 

nature. Where there are meaningful 

differences between species or stocks, or 

groups of species, in anticipated 

individual responses to activities, 

impact of expected take on the 

population due to differences in 

population status, or impacts on habitat, 

they are described independently in the 

analysis below. 

The majority of stocks that may 

potentially be taken by M/SI (18 of 22) 

fall below the insignificance threshold 

(i.e., 10 percent of residual PBR), while 

an additional two stocks do not have 

current PBR values and therefore are 

evaluated using other factors. We first 

consider stocks expected to be affected 

only by Level B harassment and those 

stocks that fall below the insignificance 

threshold. Next, we consider those 

stocks above the insignificance 

threshold (i.e., two stocks of bottlenose 

dolphin, Risso’s dolphin, and shortfinned pilot whale) and those without 

PBR values (the dwarf sperm whale, for 

which no information is available, and 

the Oregon and Washington coastal 

stock of harbor seal). 

As stated previously and described in 

detail in support of the 2015 rule (80 FR 

8166), we do not believe that SWFSC 

use of active acoustic sources has the 

likely potential to cause any effect 

exceeding Level B harassment of marine 

mammals. We have produced what we 

believe to be precautionary estimates of 

potential incidents of Level B 

harassment. There is a general lack of 

information related to the specific way 

that these acoustic signals, which are 

generally highly directional and 

transient, interact with the physical 

environment. Additionally, there is a 

lack of meaningful understanding of 

marine mammal perception of these 

signals. The procedure for producing 

these estimates, described in detail in 

‘‘Estimated Take Due to Acoustic 

Harassment,’’ represents a reasonable 

and precautionary effort towards 

quantifying the potential for exposure to 

noise from these sources, which we 

equate herein with Level B harassment. 

The sources considered here have 

moderate to high output frequencies, 

generally short ping durations, and are 

typically focused (highly directional) to 

serve their intended purpose of 

mapping specific objects, depths, or 

environmental features. In addition, 

some of these sources can be operated 

in different output modes (e.g., energy 

can be distributed among multiple 

output beams) that may lessen the 

likelihood of perception by and 

potential impacts on marine mammals 

in comparison with the quantitative 

estimates that guide our take 

authorization. We also produced 

estimates of incidents of potential Level 

B harassment due to disturbance of 

hauled-out pinnipeds that may result 

from the physical presence of 

researchers in the Antarctic; these 

estimates are combined with the 

estimates of Level B harassment that 

may result from use of active acoustic 

devices. 

Here, we consider authorized Level B 

harassment take less than five percent of 

population abundance to be ‘‘de 

minimis,’’ and authorized Level B 

harassment taking between 5–15 percent 

as ‘‘low.’’ A ‘‘moderate’’ amount of 

authorized taking by Level B harassment 

would be from 15–25 percent, and 

‘‘high’’ above 25 percent. Of the 53 

stocks that may be subject to Level B 

harassment, the level of taking that may 

be authorized would represent a de 

minimis impact for 43 stocks and a low 

impact for an additional four stocks. We 

do not consider these impacts further 

for these 47 stocks. 

The level of taking by Level B 

harassment would represent a moderate 

impact on three additional stocks: The 

southern resident stock of killer whales 

and Morro Bay and Monterey Bay stocks 

of harbor porpoise. However, the values 

calculated for proportion of population 

potentially affected assume that all 

estimated takes species-wide would 

accrue to each of the potentially affected 

stocks. In the absence of information to 

3866 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

better refine stock-specific values, this 

worst-case proportion is an appropriate 

way to evaluate whether an amount of 

taking is greater than small numbers. 

For purposes of determining whether 

the total impacts to a stock represent no 

greater than a negligible impact, 

however, these values are overly 

conservative. We know that a majority 

of SWFSC use of active acoustic systems 

will not be concentrated in either of 

Morro Bay or Monterey Bay and, 

therefore, we conclude that the actual 

significance of taking by Level B 

harassment for these stocks of harbor 

porpoise will likely be significantly less 

than ‘‘moderate.’’ Similarly, the only 

potential avenue for effects to southern 

resident killer whales would be during 

the time when whales are foraging in 

coastal waters. Considering that whales 

are present in coastal waters for 

relatively brief portions of the year and 

that SWFSC research has limited 

overlap with the whales’ relatively 

shallow foraging grounds in coastal 

waters, we again conclude that actual 

significance of any potential acoustic 

exposure for the stock would be less 

than moderate. Therefore, we do not 

consider these stocks further. For an 

additional three stocks (Arnoux’ beaked 

whale and spectacled porpoise in 

Antarctica and dwarf sperm whales in 

the CCE whale), there is no abundance 

estimate upon which to base a 

comparison. However, we note that the 

anticipated number of incidents of take 

by Level B harassment are very low (2 

and 10 for the Antarctic species, 

respectively, and 213 combined for both 

stocks of Kogia spp.) and likely 

represent a de minimis impact on these 

stocks. 

As described previously, there is 

some minimal potential for temporary 

effects to hearing for certain marine 

mammals, but most effects would likely 

be limited to temporary behavioral 

disturbance. Effects on individuals that 

are taken by Level B harassment will 

likely be limited to reactions such as 

increased swimming speeds, increased 

surfacing time, or decreased foraging (if 

such activity were occurring), which are 

all reactions that are considered to be of 

low severity (e.g., Ellison et al., 2012). 

Individuals may move away from the 

source if disturbed; but, because the 

source is itself moving and because of 

the directional nature of the sources 

considered here, there is unlikely to be 

even temporary displacement from areas 

of significance and any disturbance 

would be of short duration. Although 

there is no information on which to base 

any distinction between incidents of 

harassment and individuals harassed, 

the same factors, in conjunction with 

the fact that SWFSC survey effort is 

widely dispersed in space and time, 

indicate that repeated exposures of the 

same individuals would be very 

unlikely. For these reasons, we do not 

consider the level of take by acoustic 

disturbance to represent a significant 

additional population stressor when 

considered in context with the level of 

take by M/SI for any species, including 

those for which no abundance estimate 

is available. 

Similarly, disturbance of pinnipeds 

on haul-outs by researchers (expected 

for Antarctic pinnipeds) is expected to 

be infrequent and cause only a 

temporary disturbance on the order of 

minutes. Monitoring results from other 

activities involving the disturbance of 

pinnipeds and relevant studies of 

pinniped populations that experience 

more regular vessel disturbance indicate 

that individually significant or 

population level impacts are unlikely to 

occur. When considering the individual 

animals likely affected by this 

disturbance, only a small fraction of the 

estimated population abundance of the 

affected stocks would be expected to 

experience the disturbance. 

For Risso’s dolphin, short-finned pilot 

whale, and the offshore stock of 

bottlenose dolphin, maximum total 

potential M/SI due to NMFS’ fisheries 

research activity (SWFSC, NWFSC, and 

AFSC combined) is approximately 12, 

24, and 30 percent of residual PBR, 

respectively. For example, PBR for 

Risso’s dolphin is currently set at 46 

and the annual average of known 

ongoing anthropogenic M/SI is 3.7, 

yielding a residual PBR value of 42.3. 

The maximum combined annual 

average M/SI incidental to NMFS 

fisheries research activity is 5, or 11.8 

percent of residual PBR. The only 

known source of other anthropogenic 

mortality for these species is in 

commercial fisheries. For the Risso’s 

dolphin and offshore stock of bottlenose 

dolphin, such take is considered to be 

insignificant and approaching zero 

mortality and serious injury. This is not 

the case for the short-finned pilot whale; 

however, the annual take from fisheries 

(1.2) and from NMFS’s fisheries 

research (0.8) are both very low. There 

are no other factors that would lead us 

to believe that take by M/SI of 24 

percent of residual PBR would be 

problematic for this species. 

For the California coastal stock of 

bottlenose dolphin, maximum total 

potential M/SI due to NMFS’ fisheries 

research activity (SWFSC, NWFSC, and 

AFSC combined) is approximately 114 

percent of residual PBR. Although the 

maximum annual take by M/SI is low 

(0.8), the residual PBR is also low (0.7). 

(Note that there is no take by M/SI 

authorized for this stock other than for 

SWFSC activities.) Here we provide 

additional detail regarding the available 

information for the coastal stock of 

bottlenose dolphin and explain our 

conclusion that the calculated 

proportion of residual PBR presents an 

unrealistically conservative assessment 

of the potential impacts to the stock due 

to SWFSC fisheries research activity. 

First, the available information indicates 

that the PBR value is biased low. PBR 

is calculated in consideration of the 

minimum population size which, for 

coastal bottlenose dolphins, represents 

the minimum number of individually 

identifiable animals documented during 

mark-recapture surveys in 2009–11 

(Carretta et al., 2017). This number (346 

animals) represents the minimum 

abundance, but estimates of population 

abundance resulting from the 2009–11 

study range from 411–564 animals 

(Carretta et al., 2017). Even these higher 

abundance estimates represent marked 

animals only, and exclude the 

approximately 40 percent of animals 

that are not individually recognizable 

(Weller et al., 2016). In addition, the 

estimates based on the 2009–11 study 

were the highest ever for the population 

and included a high proportion (∼75 

percent) of previously uncatalogued 

dolphins (Weller et al., 2016). The 

number of individually identifiable 

animals from 2009–11 exceeded 

previous estimates for the abundance of 

the entire marked population. These 

facts suggest that the stock may have 

grown in the ten years since conclusion 

of the last abundance study. Finally, 

although the stock is confined to U.S. 

waters for management purposes, the 

biological stock is transboundary and an 

unknown additional number of 

dolphins are likely found in Mexico. 

Regarding anthropogenic M/SI that is 

assumed to be ongoing, current 

estimates are based on scant data. With 

9 percent observer coverage in the 

coastal halibut/yellowtail gillnet fishery 

during 2010–14, no entanglements were 

observed, and none have been observed 

since 2003 (Carretta et al., 2017). The 

basis for the assumption that a 

minimum of 1.6 dolphins are killed 

annually in fisheries was the discovery 

of two carcasses with evidence of 

entanglement from 2010–14. In 

addition, during this same period, one 

dolphin was found floating under a U.S. 

Navy marine mammal program dolphin 

pen enclosure dock and was assumed to 

have become entangled in the net 

curtain, and another dolphin became 

entrapped and drowned in a sea otter 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3867 

research net. Both of these incidents 

could rightly be considered as 

unpredictable occurrences with little 

likelihood of recurring. However, they 

add 0.4 animals to the assumed amount 

of ongoing annual anthropogenic M/SI. 

None of NMFS’ fisheries research 

activities on the west coast have ever 

resulted in an interaction with 

bottlenose dolphins. In summary, the 

available information leads us to 

conclude that the PBR value for the 

stock is likely unrealistically low and 

that the assumed annual anthropogenic 

M/SI value may be higher than is 

actually occurring. Therefore, we find 

that the potential total take of coastal 

bottlenose dolphin considered here 

represents a negligible impact on the 

stock. 

PBR is unknown for harbor seals on 

the Oregon and Washington coasts. The 

Oregon/Washington coast stock of 

harbor seal was considered to be stable 

following the most recent abundance 

estimates (in 1999, stock abundance 

estimated at 24,732). However, a 

Washington Department of Fish and 

Wildlife expert (S. Jeffries) stated an 

unofficial abundance of 32,000 harbor 

seals in Washington (Mapes, 2013). 

Therefore, it is reasonable to assume 

that at worst, the stocks have not 

declined since the last abundance 

estimates. Ongoing anthropogenic 

mortality is estimated at 10.6 harbor 

seals per year. Therefore, we reasonably 

assume that the maximum potential 

annual M/SI incidental to NMFS’ 

fisheries research activities (5.2) is a 

small fraction of any sustainable take 

level that might be calculated for the 

stock. 

PBR is also undetermined for the 

dwarf sperm whale. However, a PBR of 

19.2 is calculated for the pygmy sperm 

whale, and there are no additional 

known sources of anthropogenic M/SI 

for Kogia spp. Although it is possible 

that there are fewer dwarf sperm whales 

than pygmy sperm whales in the CCE, 

we reasonably assume that the 

maximum potential annual M/SI 

incidental to NMFS’ fisheries research 

activities (0.6) is a small fraction of any 

sustainable take level that might be 

calculated for the stock. 

In summary, our negligible impact 

analysis is founded on the following 

factors: (1) The possibility of injury, 

serious injury, or mortality from the use 

of active acoustic devices may 

reasonably be considered discountable; 

(2) the anticipated incidents of Level B 

harassment from the use of active 

acoustic devices and physical 

disturbance of pinnipeds consist of, at 

worst, temporary and relatively minor 

modifications in behavior; (3) the 

predicted number of incidents of 

potential mortality are at insignificant 

levels for a majority of affected stocks; 

(4) consideration of additional factors 

for Risso’s dolphin, short-finned pilot 

whale, and the offshore stock of 

bottlenose dolphin do not reveal cause 

for concern; (5) total maximum potential 

M/SI incidental to NMFS fisheries 

research activity for coastal bottlenose 

dolphin, considered in conjunction with 

other sources of ongoing mortality and 

in context of the available information 

regarding stock abundance, presents 

only a minimal incremental addition to 

total M/SI; (6) available information 

regarding stocks for which no current 

PBR estimate is available indicates that 

total maximum potential M/SI is 

sustainable; and (7) the presumed 

efficacy of the planned mitigation 

measures in reducing the effects of the 

specified activity to the level of least 

practicable adverse impact. In 

combination, we believe that these 

factors demonstrate that the specified 

activity will have only short-term effects 

on individuals (resulting from Level B 

harassment) and that the total level of 

taking will not impact rates of 

recruitment or survival sufficiently to 

result in population-level impacts. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

required monitoring and mitigation 

measures, we find that the total marine 

mammal take from the proposed 

activities will have a negligible impact 

on the affected marine mammal species 

or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under Section 101(a)(5)(A) of the MMPA 

for specified activities. The MMPA does 

not define small numbers and so, in 

practice, where estimated numbers are 

available, NMFS compares the number 

of individuals taken to the most 

appropriate estimation of abundance of 

the relevant species or stock in our 

determination of whether an 

authorization is limited to small 

numbers of marine mammals. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

Please see Tables 9 and 10 for 

information relating to this small 

numbers analysis. The total amount of 

taking is less than five percent for a 

majority of stocks, and the total amount 

of taking is less than one-third of the 

stock abundance for all stocks. 

Based on the analysis contained 

herein of the activity (including the 

required mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals will 

be taken relative to the population size 

of the affected species or stocks. 

Impact on Availability of Affected 

Species for Taking for Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by these 

actions. Therefore, we have determined 

that the total taking of affected species 

or stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to SWFSC 

fisheries research survey operations 

contain an adaptive management 

component. The inclusion of an 

adaptive management component will 

be both valuable and necessary within 

the context of five-year regulations for 

activities that have been associated with 

marine mammal mortality. 

The reporting requirements associated 

with this rule are designed to provide 

OPR with monitoring data from the 

previous year to allow consideration of 

whether any changes are appropriate. 

OPR and the SWFSC will meet annually 

to discuss the monitoring reports and 

current science and whether mitigation 

or monitoring modifications are 

appropriate. The use of adaptive 

management allows OPR to consider 

new information from different sources 

to determine (with input from the 

SWFSC regarding practicability) on an 

annual or biennial basis if mitigation or 

monitoring measures should be 

modified (including additions or 

deletions). Mitigation measures could be 

modified if new data suggests that such 

modifications would have a reasonable 

likelihood of reducing adverse effects to 

marine mammals and if the measures 

are practicable. 

The following are some of the 

possible sources of applicable data to be 

considered through the adaptive 

management process: (1) Results from 

monitoring reports, as required by 

MMPA authorizations; (2) results from 

general marine mammal and sound 

research; and (3) any information which 

reveals that marine mammals may have 

been taken in a manner, extent, or 

number not authorized by these 

regulations or subsequent LOAs. 

3868 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must evaluate our 

proposed action (i.e., the promulgation 

of regulations and subsequent issuance 

of incidental take authorization) and 

alternatives with respect to potential 

impacts on the human environment. 

In 2015, NMFS prepared a 

Programmatic Environmental 

Assessment (PEA; Programmatic 

Environmental Assessment for Fisheries 

Research Conducted and Funded by the 

Southwest Fisheries Science Center) to 

consider the direct, indirect and 

cumulative effects to the human 

environment resulting from SWFSC’s 

activities as well as the NMFS Office of 

Protected Resources (OPR) issuance of 

the regulations and subsequent 

incidental take authorization. NMFS 

made the PEA available to the public for 

review and comment, in relation 

specifically to its suitability for 

assessment of the impacts of our action 

under the MMPA. OPR signed a Finding 

of No Significant Impact (FONSI) 

related to our action under the MMPA 

on August 31, 2015. The PEA and the 

2015 FONSI are available online at: 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-noaafisheries-swfsc-fisheries-and-ecosystemresearch. 

On May 11, 2020, NMFS announced 

the availability of a ‘‘Draft 

Supplemental Programmatic 

Environmental Assessment (SPEA) for 

Fisheries Research Conducted and 

Funded by the Southwest Fisheries 

Science Center’’ for review and 

comment (85 FR 27719). The purpose of 

the Draft SPEA is to evaluate potential 

direct, indirect, and cumulative effects 

of unforeseen changes in research that 

were not analyzed in the 2015 PEA, or 

new research activities along the U.S. 

West Coast, throughout the Eastern 

Tropical Pacific Ocean, and in the 

Scotia Sea area off Antarctica. Where 

necessary, updates to certain 

information on species, stock status or 

other components of the affected 

environment that may result in different 

conclusions from the 2015 PEA are 

presented in this analysis. 

NMFS evaluated information in the 

PEA, SPEA, and SWFSC’s application, 

as well as the 2015 FONSI, and 

determined that the initial FONSI is 

sufficient to support issuance of these 

regulations and subsequent Letters of 

Authorization. NMFS has documented 

this determination in a memorandum 

for the record. 

Endangered Species Act (ESA) 

There are multiple marine mammal 

species listed under the ESA with 

confirmed or possible occurrence in the 

proposed specified geographical regions 

(see Tables 1 and 2). The authorization 

of incidental take pursuant to the 

SWFSC’s specified activity would not 

affect any designated critical habitat. 

OPR requested initiation of consultation 

with NMFS’ West Coast Regional Office 

(WCRO) under section 7 of the ESA on 

the promulgation of five-year 

regulations and the subsequent issuance 

of LOAs to SWFSC under section 

101(a)(5)(A) of the MMPA. 

WCRO issued a biological opinion to 

OPR and to the SWFSC (concerning the 

conduct of the specified activities) 

which concluded that the issuance of 

the authorizations is not likely to 

adversely affect any listed marine 

mammal species. 

Classification 

Pursuant to the procedures 

established to implement Executive 

Order 12866, the Office of Management 

and Budget has determined that this 

proposed rule is not significant. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce certified to 

the Chief Counsel for Advocacy of the 

Small Business Administration at the 

proposed rule stage that this action will 

not have a significant economic impact 

on a substantial number of small 

entities. SWFSC is the sole entity that 

would be subject to the requirements of 

these regulations, and the SWFSC is not 

a small governmental jurisdiction, small 

organization, or small business, as 

defined by the RFA. No comments were 

received regarding this certification or 

on the economic impacts of the rule 

more generally. As a result, a regulatory 

flexibility analysis is not required and 

none has been prepared. 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act (PRA) unless that 

collection of information displays a 

currently valid OMB control number. 

However, this rule does not contain a 

collection-of-information requirement 

subject to the provisions of the PRA 

because the applicant is a Federal 

agency. 

Waiver of Delay in Effective Date 

NMFS has determined that there is 

good cause under the Administrative 

Procedure Act (5 U.S.C. 553(d)(3)) to 

waive the 30-day delay in the effective 

date of this final rule. No individual or 

entity other than the SWFSC is affected 

by the provisions of these regulations. 

The SWFSC has requested that this final 

rule take effect on October 30, 2020, to 

accommodate the SWFSC’s LOA 

expiring on October 29, 2020, so as to 

not cause a disruption in research 

activities. The waiver of the 30-day 

delay of the effective date of the final 

rule will ensure that the MMPA final 

rule and LOA are in place by the time 

the previous authorizations expire. Any 

delay in finalizing the rule would result 

in either: (1) A suspension of planned 

research, which would disrupt the 

provision of vital data necessary for 

effective management of fisheries; or (2) 

the SWFSC’s procedural noncompliance with the MMPA (should the 

SWFSC conduct research without an 

LOA), thereby resulting in the potential 

for unauthorized takes of marine 

mammals. Moreover, the SWFSC is 

ready to implement the regulations 

immediately and requested the waiver. 

For these reasons, NMFS finds good 

cause to waive the 30-day delay in the 

effective date. In addition, the rule 

authorizes incidental take of marine 

mammals that would otherwise be 

prohibited under the statute. Therefore, 

by granting an exception to the SWFSC, 

the rule will relieve restrictions under 

the MMPA, which provides a separate 

basis for waiving the 30-day effective 

date for the rule. 

List of Subjects in 50 CFR Part 219 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: December 14, 2020. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For reasons set forth in the preamble 

NOAA adds part 219 to read as follows: 

PART 219—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

Subpart A—Taking Marine Mammals 

Incidental to Southwest Fisheries 

Science Center Fisheries Research 

Sec. 

219.1 Specified activity and specified 

geographical region. 

219.2 Effective dates. 

219.3 Permissible methods of taking. 

219.4 Prohibitions. 

219.5 Mitigation requirements. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3869 

219.6 Requirements for monitoring and 

reporting. 

219.7 Letters of Authorization. 

219.8 Renewals and modifications of 

Letters of Authorization. 

219.9–219.10 [Reserved] 

Subpart B [Reserved] 

Authority: 16 U.S.C. 1361 et seq. 

Subpart A—Taking Marine Mammals 

Incidental to Southwest Fisheries 

Science Center Fisheries Research 

§ 219.1 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the National Marine Fisheries 

Service’s (NMFS) Southwest Fisheries 

Science Center (SWFSC) and those 

persons it authorizes or funds to 

conduct activities on its behalf for the 

taking of marine mammals that occurs 

in the areas outlined in paragraph (b) of 

this section and that occurs incidental 

to research survey program operations. 

(b) The taking of marine mammals by 

SWFSC may be authorized in a Letter of 

Authorization (LOA) only if it occurs 

within the California Current Ecosystem 

(CCE) or Antarctic Marine Living 

Resources Ecosystem (AMLR). 

§ 219.2 Effective dates. 

Regulations in this subpart are 

effective from January 15, 2021 through 

January 15, 2026. 

§ 219.3 Permissible methods of taking. 

Under LOAs issued pursuant to 

§§ 216.106 of this chapter and 219.7, the 

Holder of the LOA (hereinafter 

‘‘SWFSC’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in § 219.1(b) 

by Level B harassment associated with 

use of active acoustic systems and 

physical or visual disturbance of 

hauled-out pinnipeds and by Level A 

harassment, serious injury, or mortality 

associated with use of fisheries research 

gear, provided the activity is in 

compliance with all terms, conditions, 

and requirements of the regulations in 

this subpart and the appropriate LOA. 

§ 219.4 Prohibitions. 

(a) Notwithstanding takings 

contemplated in § 219.1 and authorized 

by a LOA issued under §§ 216.106 of 

this chapter and 219.7, no person in 

connection with the activities described 

in § 219.1 may: 

(1) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or a LOA issued under 

§§ 216.106 of this chapter and 219.7; 

(2) Take any marine mammal not 

specified in such LOA; 

(3) Take any marine mammal 

specified in such LOA in any manner 

other than as specified; 

(4) Take a marine mammal specified 

in such LOA if NMFS determines such 

taking results in more than a negligible 

impact on the species or stocks of such 

marine mammal; or 

(5) Take a marine mammal specified 

in such LOA if NMFS determines such 

taking results in an unmitigable adverse 

impact on the species or stock of such 

marine mammal for taking for 

subsistence uses. 

(b) [Reserved] 

§ 219.5 Mitigation requirements. 

When conducting the activities 

identified in § 219.1(a), the mitigation 

measures contained in any LOA issued 

under §§ 216.106 of this chapter and 

219.7 must be implemented. 

(a) General conditions. (1) SWFSC 

must take all necessary measures to 

coordinate and communicate in advance 

of each specific survey with the 

National Oceanic and Atmospheric 

Administration’s (NOAA) Office of 

Marine and Aviation Operations 

(OMAO) or other relevant parties on 

non-NOAA platforms to ensure that all 

mitigation measures and monitoring 

requirements described herein, as well 

as the specific manner of 

implementation and relevant eventcontingent decision-making processes, 

are clearly understood and agreed upon. 

(2) SWFSC must coordinate and 

conduct briefings at the outset of each 

survey and as necessary between ship’s 

crew (Commanding Officer/master or 

designee(s), as appropriate) and 

scientific party in order to explain 

responsibilities, communication 

procedures, marine mammal monitoring 

protocol, and operational procedures. 

(3) SWFSC must coordinate as 

necessary on a daily basis during survey 

cruises with OMAO personnel or other 

relevant personnel on non-NOAA 

platforms to ensure that requirements, 

procedures, and decision-making 

processes are understood and properly 

implemented. 

(4) When deploying any type of 

sampling gear at sea, SWFSC must at all 

times monitor for any unusual 

circumstances that may arise at a 

sampling site and use best professional 

judgment to avoid any potential risks to 

marine mammals during use of all 

research equipment. 

(5) SWFSC must implement handling 

and/or disentanglement protocols as 

specified in guidance provided to 

SWFSC survey personnel. 

(b) Trawl survey protocols. (1) SWFSC 

must conduct trawl operations as soon 

as is practicable upon arrival at the 

sampling station. 

(2) SWFSC must initiate marine 

mammal watches (visual observation) at 

least 15 minutes prior to beginning of 

net deployment (or for the amount of 

time to travel between stations if less 

than 15 minutes) but must also conduct 

monitoring during any pre-set activities 

including CTD casts and plankton or 

bongo net hauls. 

(3) In the CCE, SWFSC must 

implement the move-on rule mitigation 

protocol, as described in this paragraph. 

If one or more marine mammals, with 

the exception of baleen whales, are 

observed within 1 nautical mile (nmi) of 

the planned sampling location during 

the visual observation period, SWFSC 

must move on to another sampling 

location. If, after moving on, marine 

mammals remain within 1 nmi, the 

SWFSC must move again or skip the 

station. SWFSC may use best 

professional judgment in making these 

decisions but may not elect to conduct 

trawl survey activity when marine 

mammals other than baleen whales 

remain within the 1-nmi zone. 

(4) SWFSC must maintain visual 

monitoring effort during the entire 

period of time that trawl gear is in the 

water (i.e., throughout gear deployment, 

fishing, and retrieval). If marine 

mammals are sighted before the gear is 

fully removed from the water, SWFSC 

must take the most appropriate action to 

avoid marine mammal interaction. 

SWFSC may use best professional 

judgment in making this decision. 

(5) If trawling operations have been 

suspended because of the presence of 

marine mammals, SWFSC may resume 

trawl operations when practicable only 

when the animals are believed to have 

departed the 1 nmi area. SWFSC may 

use best professional judgment in 

making this determination. 

(6) SWFSC must implement standard 

survey protocols to minimize potential 

for marine mammal interactions, 

including maximum tow durations at 

target depth and maximum tow 

distance, and shall carefully empty the 

trawl as quickly as possible upon 

retrieval. Trawl nets must be cleaned 

prior to deployment. 

(7) SWFSC must install and use a 

marine mammal excluder device at all 

times when the Nordic 264 trawl net or 

any other net is used for which the 

device is appropriate. 

(8) SWFSC must install and use 

acoustic deterrent devices whenever any 

midwater trawl net is used, with two to 

four devices placed along the footrope 

and/or headrope of the net. SWFSC 

must ensure that the devices are 

3870 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

operating properly before deploying the 

net. 

(c) Pelagic longline survey protocols. 

(1) SWFSC must deploy longline gear as 

soon as is practicable upon arrival at the 

sampling station. 

(2) SWFSC must initiate marine 

mammal watches (visual observation) 

no less than 15 minutes (or for the 

duration of transit between locations, if 

shorter than 15 minutes) prior to both 

deployment and retrieval of longline 

gear. 

(3) SWFSC must implement the moveon rule mitigation protocol, as described 

in this paragraph. If one or more marine 

mammals, with the exception of groups 

of five or fewer California sea lions, are 

observed within 1 nmi of the planned 

sampling location during the visual 

observation period, SWFSC must move 

on to another sampling location. If, after 

moving on, marine mammals remain 

within 1 nmi, the SWFSC must move 

again or skip the station. SWFSC may 

use best professional judgment in 

making these decisions but may not 

elect to conduct pelagic longline survey 

activity when animals remain within 

the 1-nmi zone. 

(4) SWFSC must maintain visual 

monitoring effort during the entire 

period of gear deployment and retrieval. 

If marine mammals are sighted before 

the gear is fully deployed or retrieved, 

SWFSC must take the most appropriate 

action to avoid marine mammal 

interaction. SWFSC may use best 

professional judgment in making this 

decision. 

(5) If deployment or retrieval 

operations have been suspended 

because of the presence of marine 

mammals, SWFSC may resume such 

operations when practicable only when 

the animals are believed to have 

departed the 1 nmi area. SWFSC may 

use best professional judgment in 

making this decision. 

(6) SWFSC must implement standard 

survey protocols, including maximum 

soak durations and a prohibition on 

chumming. 

(d) Purse seine survey protocols. (1) 

SWFSC must conduct purse seine 

operations as soon as is practicable 

upon arrival at the sampling station. 

(2) SWFSC must conduct marine 

mammal watches (visual observation) 

prior to beginning of net deployment. 

(3) SWFSC must implement the moveon rule mitigation protocol, as described 

in this paragraph for use of purse seine 

gear. If one or more killer whales or 

small cetaceans (i.e., dolphin or 

porpoise) or five or more pinnipeds are 

observed within 500 m of the planned 

sampling location before setting the 

purse seine gear, SWFSC must either 

remain onsite or move on to another 

sampling location. If remaining onsite, 

the set must be delayed. If the animals 

depart or appear to no longer be at risk 

of interacting with the vessel or gear, a 

further observation period must be 

conducted. If no further observations are 

made or the animals still do not appear 

to be at risk of interaction, then the set 

may be made. If the vessel is moved to 

a different area, the move-on rule 

mitigation protocol would begin anew. 

If, after moving on, marine mammals 

remain at risk of interaction, the SWFSC 

must move again or skip the station. 

Marine mammals that are sighted 

further than 500 m from the vessel must 

be monitored to determine their 

position and movement in relation to 

the vessel to determine whether the 

move-on rule mitigation protocol should 

be implemented. SWFSC may use best 

professional judgment in making these 

decisions. 

(4) SWFSC must maintain visual 

monitoring effort during the entire 

period of time that purse seine gear is 

in the water (i.e., throughout gear 

deployment, fishing, and retrieval). If 

marine mammals are sighted before the 

gear is fully removed from the water, 

SWFSC must take the most appropriate 

action to avoid marine mammal 

interaction. SWFSC may use best 

professional judgment in making this 

decision. 

(5) If purse seine operations have been 

suspended because of the presence of 

marine mammals, SWFSC may resume 

seine operations when practicable only 

when the animals are believed to have 

departed the area. SWFSC may use best 

professional judgment in making this 

determination. 

(6) If any cetaceans are observed in a 

purse seine net, SWFSC must 

immediately open the net and free the 

animals. 

§ 219.6 Requirements for monitoring and 

reporting. 

(a) Compliance coordinator. SWFSC 

must designate a compliance 

coordinator who shall be responsible for 

ensuring compliance with all 

requirements of any LOA issued 

pursuant to § 216.106 of this chapter 

and § 219.7 and for preparing for any 

subsequent request(s) for incidental take 

authorization. 

(b) Visual monitoring program. (1) 

Marine mammal visual monitoring must 

occur prior to deployment of trawl, 

hook and line, and purse seine gear, 

respectively; throughout deployment of 

gear and active fishing of research gears 

(not including longline soak time); prior 

to retrieval of longline gear; and 

throughout retrieval of all research gear. 

(2) Marine mammal watches must be 

conducted by watch-standers (those 

navigating the vessel and/or other crew) 

at all times when the vessel is being 

operated. 

(3) SWFSC must monitor any 

potential disturbance of pinnipeds on 

ice, paying particular attention to the 

distance at which different species of 

pinniped are disturbed. Disturbance 

must be recorded according to a threepoint scale representing increasing seal 

response to disturbance. 

(c) Training. (1) SWFSC must conduct 

annual training for all chief scientists 

and other personnel who may be 

responsible for conducting dedicated 

marine mammal visual observations to 

explain mitigation measures and 

monitoring and reporting requirements, 

mitigation and monitoring protocols, 

marine mammal identification, 

completion of datasheets, and use of 

equipment. SWFSC may determine the 

agenda for these trainings. 

(2) SWFSC must also dedicate a 

portion of training to discussion of best 

professional judgment, including use in 

any incidents of marine mammal 

interaction and instructive examples 

where use of best professional judgment 

was determined to be successful or 

unsuccessful. 

(3) SWFSC must coordinate with 

NMFS’ Northwest Fisheries Science 

Center (NWFSC) regarding surveys 

conducted in the CCE, such that training 

and guidance related to handling 

procedures and data collection is 

consistent. 

(d) Handling procedures and data 

collection. (1) SWFSC must implement 

standardized marine mammal handling, 

disentanglement, and data collection 

procedures. These standard procedures 

will be subject to approval by NMFS’s 

Office of Protected Resources (OPR). 

(2) When practicable, for any marine 

mammal interaction involving the 

release of a live animal, SWFSC must 

collect necessary data to facilitate a 

serious injury determination. 

(3) SWFSC must provide its relevant 

personnel with standard guidance and 

training regarding handling of marine 

mammals, including how to identify 

different species, bring an individual 

aboard a vessel, assess the level of 

consciousness, remove fishing gear, 

return an individual to water, and log 

activities pertaining to the interaction. 

(4) SWFSC must record such data on 

standardized forms, which will be 

subject to approval by OPR. SWFSC 

must also answer a standard series of 

supplemental questions regarding the 

details of any marine mammal 

interaction. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3871 

(e) Reporting. (1) SWFSC must report 

all incidents of marine mammal 

interaction to NMFS’s Protected Species 

Incidental Take database within 48 

hours of occurrence and must provide 

supplemental information to OPR upon 

request. Information related to marine 

mammal interaction (animal captured or 

entangled in research gear) must include 

details of survey effort, full descriptions 

of any observations of the animals, the 

context (vessel and conditions), 

decisions made, and rationale for 

decisions made in vessel and gear 

handling. 

(2) SWFSC must submit annual 

reports including: 

(i) An annual summary report to OPR 

not later than 90 days following the end 

of a given year. SWFSC must provide a 

final report within 30 days following 

resolution of comments on the draft 

report. 

(ii) These reports must contain, at 

minimum, the following: 

(A) Annual line-kilometers surveyed 

during which predominant active 

acoustic sources were used; 

(B) Summary information regarding 

use of all hook and line, purse seine, 

and trawl gear, including number of 

sets, hook hours, tows, etc., specific to 

each gear; 

(C) Accounts of all incidents of 

significant marine mammal interactions, 

including circumstances of the event 

and descriptions of any mitigation 

procedures implemented or not 

implemented and why, and, for 

interactions due to use of pelagic 

longline or purse seine, whether the 

move-on rule was waived due to the 

presence of five or fewer California sea 

lions; 

(D) Summary information related to 

any on-ice disturbance of pinnipeds, 

including raw sightings data and the 

event-specific total counts of animals 

present, counts of reactions according to 

a three-point scale of response severity 

and numbers of takes (differentiated by 

species and age class), the distance at 

which a pinniped is disturbed and the 

closest point of approach for each 

disturbance event; 

(E) A written evaluation of the 

effectiveness of SWFSC mitigation 

strategies in reducing the number of 

marine mammal interactions with 

survey gear, including best professional 

judgment and suggestions for changes to 

the mitigation strategies, if any; 

(F) Final outcome of serious injury 

determinations for all incidents of 

marine mammal interactions where the 

animal(s) were released alive; and 

(G) A summary of all relevant training 

provided by SWFSC and any 

coordination with NWFSC or NMFS’ 

West Coast Regional Office. 

(f) Reporting of injured or dead 

marine mammals. (1) In the event that 

personnel involved in the survey 

activities covered by the authorization 

discover an injured or dead marine 

mammal, SWFSC must report the 

incident to OPR and to the appropriate 

West Coast Regional Stranding 

Coordinator as soon as feasible. The 

report must include the following 

information: 

(i) Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

(ii) Species identification (if known) 

or description of the animal(s) involved; 

(iii) Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

(iv) Observed behaviors of the 

animal(s), if alive; 

(v) If available, photographs or video 

footage of the animal(s); and 

(vi) General circumstances under 

which the animal was discovered. 

(2) In the event of a ship strike of a 

marine mammal by any vessel involved 

in the activities covered by the 

authorization, SWFSC must report the 

incident to OPR and to the appropriate 

West Coast Regional Stranding 

Coordinator as soon as feasible. The 

report must include the following 

information: 

(i) Time, date, and location (latitude/ 

longitude) of the incident; 

(ii) Species identification (if known) 

or description of the animal(s) involved; 

(iii) Vessel’s speed during and leading 

up to the incident; 

(iv) Vessel’s course/heading and what 

operations were being conducted (if 

applicable); 

(v) Status of all sound sources in use; 

(vi) Description of avoidance 

measures/requirements that were in 

place at the time of the strike and what 

additional measures were taken, if any, 

to avoid strike; 

(vii) Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, visibility) 

immediately preceding the strike; 

(viii) Estimated size and length of 

animal that was struck; 

(ix) Description of the behavior of the 

marine mammal immediately preceding 

and following the strike; 

(x) If available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; 

(xi) Estimated fate of the animal (e.g., 

dead, injured but alive, injured and 

moving, blood or tissue observed in the 

water, status unknown, disappeared); 

and 

(xii) To the extent practicable, 

photographs or video footage of the 

animal(s). 

§ 219.7 Letters of Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

SWFSC must apply for and obtain an 

LOA. 

(b) An LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed the expiration date 

of these regulations. 

(c) If an LOA expires prior to the 

expiration date of these regulations, 

SWFSC may apply for and obtain a 

renewal of the LOA. 

(d) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, SWFSC must apply for and obtain 

a modification of the LOA as described 

in § 219.8. 

(e) The LOA shall set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(f) Issuance of the LOA shall be based 

on a determination that the level of 

taking will be consistent with the 

findings made for the total taking 

allowable under these regulations. 

(g) Notice of issuance or denial of an 

LOA shall be published in the Federal 

Register within thirty days of a 

determination. 

§ 219.8 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under §§ 216.106 

of this chapter and 219.7 for the activity 

identified in § 219.1(a) shall be renewed 

or modified upon request by the 

applicant, provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for these 

regulations (excluding changes made 

pursuant to the adaptive management 

provision in paragraph (c)(1) of this 

section); and 

(2) OPR determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under these regulations were 

implemented. 

(b) For an LOA modification or 

renewal requests by the applicant that 

include changes to the activity or the 

mitigation, monitoring, or reporting 

(excluding changes made pursuant to 

3872 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

the adaptive management provision in 

paragraph (c)(1) of this section) that do 

not change the findings made for the 

regulations or result in no more than a 

minor change in the total estimated 

number of takes (or distribution by 

species or years), OPR may publish a 

notice of proposed LOA in the Federal 

Register, including the associated 

analysis of the change, and solicit 

public comment before issuing the LOA. 

(c) An LOA issued under §§ 216.106 

of this chapter and 219.7 for the activity 

identified in § 219.1(a) may be modified 

by OPR under the following 

circumstances: 

(1) OPR may modify (including 

augment) the existing mitigation, 

monitoring, or reporting measures (after 

consulting with SWFSC regarding the 

practicability of the modifications) if 

doing so creates a reasonable likelihood 

of more effectively accomplishing the 

goals of the mitigation and monitoring 

set forth in the preamble for these 

regulations. 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in an LOA: 

(A) Results from SWFSC’s monitoring 

from the previous year(s); 

(B) Results from other marine 

mammal and/or sound research or 

studies; 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner; and extent or number not 

authorized by these regulations or 

subsequent LOAs. 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, OPR will publish a notice of 

proposed LOA in the Federal Register 

and solicit public comment. 

(2) If OPR determines that an 

emergency exists that poses a significant 

risk to the well-being of the species or 

stocks of marine mammals specified in 

LOAs issued pursuant to §§ 216.106 of 

this chapter and 219.7, an LOA may be 

modified without prior notice or 

opportunity for public comment. Notice 

would be published in the Federal 

Register within thirty days of the action. 

§ § 219.9–219.10 [Reserved] 

[FR Doc. 2020–27817 Filed 1–14–21; 8:45 am] 

BILLING CODE 3510–22–P