[Federal Register Volume 83, Number 145 (Friday, July 27, 2018)]
[Rules and Regulations]
[Pages 36370-36397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16115]



[[Page 36369]]

Vol. 83

Friday,

No. 145

July 27, 2018

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 219





Taking and Importing Marine Mammals; Taking Marine Mammals Incidental 
to Northwest Fisheries Science Center Fisheries Research; Final Rule

Federal Register / Vol. 83 , No. 145 / Friday, July 27, 2018 / Rules 
and Regulations

[[Page 36370]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 151027994-6421-02]
RIN 0648-BF47


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Northwest Fisheries Science Center Fisheries Research

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS' Office of Protected Resources (OPR), upon request of 
NMFS' Northwest Fisheries Science Center (NWFSC), hereby issues 
regulations to govern the unintentional taking of marine mammals 
incidental to fisheries research conducted in the Pacific Ocean 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 August 27, 2018, through August 28, 2023.

ADDRESSES: A copy of NWFSC'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-authorization-noaa-fisheries-nwfsc-fisheries-and-ecosystem-research. In 
case of problems accessing these documents, please call the contact 
listed below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

    These regulations, issued under the authority of the Marine Mammal 
Protection Act (MMPA) (16 U.S.C. 1361 et seq.), establish a framework 
for authorizing the take of marine mammals incidental to the NWFSC's 
fisheries research activities in the California Current and Pacific 
Northwest.
    The NWFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. NWFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. A few 
surveys are conducted onboard commercial fishing vessels, but the NWFSC 
designs and executes the studies and funds vessel time.
    We received an application from the NWFSC requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. Take is anticipated to occur by Level B harassment incidental 
to the use of active acoustic devices, as well as by visual disturbance 
of pinnipeds, and by Level A harassment, serious injury, or mortality 
incidental to the use of fisheries research gear. The regulations are 
valid for five years from the date of issuance. Please see 
``Background'' below for definitions of harassment.

Legal Authority for the Proposed 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, 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 final rule containing five-year regulations, and a 
subsequent LOA. As directed by this legal authority, this final rule 
contains mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Final Rule

    The following provides a summary of some of the major provisions 
within the rulemaking for the NWFSC fisheries research activities. We 
have determined that the NWFSC's adherence to the planned mitigation, 
monitoring, and reporting measures listed below will achieve the least 
practicable adverse impact on the affected marine mammals. They 
include:
    <bullet> Required monitoring of the sampling areas to detect the 
presence of marine mammals before deployment of certain research gear.
    <bullet> Required use of acoustic deterrent devices on surface 
trawl nets.
    <bullet> Required implementation of the mitigation strategy known 
as the ``move-on rule mitigation protocol'' which incorporates best 
professional judgment, when necessary during certain research fishing 
operations.

Background

    Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 
1371(a)(5)(A) and (D)) direct 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 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Except with respect to certain activities not pertinent here, 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).

Summary of Request

    On August 10, 2015, we received an adequate and complete request 
from NWFSC for authorization to take marine mammals incidental to 
fisheries research activities. We received an initial draft of the 
request on January 2, 2015, followed by a revised draft on April 28, 
2015. On August 28, 2015 (80 FR 52256), we published a notice of 
receipt of NWFSC's application in the Federal Register, requesting 
comments and information related to the NWFSC

[[Page 36371]]

request for 30 days. We received comments jointly from The Humane 
Society of the United States and Whale and Dolphin Conservation, which 
we considered in development of the notice of proposed rulemaking (81 
FR 38516; June 13, 2016) and which are available online at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nwfsc-fisheries-and-ecosystem-research.
    NWFSC plans to conduct fisheries research with trawl gear used at 
various levels in the water column, hook-and-line gears (including 
longlines with multiple hooks, rod and reel, and troll deployments), 
purse seine/tangle net gear, and other gear. If a marine mammal 
interacts with gear deployed by NWFSC, the outcome could potentially be 
Level A harassment, serious injury (i.e., any injury that will likely 
result in mortality), or mortality. Therefore, NWFSC has pooled the 
estimated number of incidents of take that could reasonably result from 
gear interactions, and we have assessed the potential impacts 
accordingly. NWFSC 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 may also occur, as a result of 
visual disturbance from vessels conducting NWFSC research. These 
regulations are valid for five years from the date of issuance.
    NWFSC requests authorization to take individuals of 16 species by 
Level A harassment, serious injury, or mortality (hereafter referred to 
as M/SI) and of 34 species by Level B harassment.

Description of the Specified Activity

Overview

    The NWFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. NWFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. A few 
surveys are conducted onboard commercial fishing vessels, but the NWFSC 
designs and executes the studies and funds vessel time. The NWFSC plans 
to administer and conduct approximately 36 survey programs over the 5-
year period. 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, seine nets, traps, and other gear. Only use of 
trawl nets, hook and line gears, 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 
NWFSC is the research arm of NMFS in the northwest region of the United 
States. The NWFSC conducts research and provides scientific advice to 
manage fisheries and conserve protected species in the geographic 
research area described below 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 NWFSC, weather conditions, or ship contingencies. In addition, 
cooperative research is designed to provide 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.

Specified Geographical Region

    The NWFSC conducts research in the Pacific Northwest and California 
Current within three research areas: The California Current Research 
Area (CCRA), Puget Sound Research Area (PSRA), and Lower Columbia River 
Research Area (LCRRA). Please see Figures 1-2 through 1-4 in the NWFSC 
application for maps of the three research areas. We note here that, 
while the NWFSC specified geographical region extends outside of the 
U.S. Exclusive Economic Zone (EEZ), from the Mexican EEZ (not including 
Mexican territorial waters) north into the Canadian EEZ (not including 
Canadian territorial waters), the MMPA's authority does not extend into 
foreign territorial waters. These areas were described in detail in our 
notice of proposed rulemaking (81 FR 38516; June 13, 2016); please see 
that document for further detail.

Detailed Description of Activities

    A detailed description of NWFSC's planned activities was provided 
in our notice of proposed rulemaking (81 FR 38516; June 13, 2016) 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 June 13, 2016 (81 FR 38516; June 13, 2016), and requested 
comments and information from the public. During the thirty-day comment 
period, we received a letter from the Marine Mammal Commission 
(Commission). The comments and our responses are provided here, and the 
comments have been posted online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nwfsc-fisheries-and-ecosystem-research. Please see the comment letter for full rationale 
behind the recommendations we respond to below. No changes were made to 
the proposed rule as a result of these comments.
    Comment 1: The Commission provides general recommendations--not 
specific to the proposed NWFSC rulemaking--that NMFS develop criteria 
and guidance for determining when prospective applicants should request 
taking by Level B harassment from the use of echosounders, other 
sonars, and sub-bottom profilers and that NMFS formulate a strategy for 
updating its generic behavioral harassment thresholds for all types of 
sound sources as soon as possible.
    Response: We appreciate the recommendations and will consider the 
need for applicant guidance specific to the types of acoustic sources 
mentioned by the Commission. Generally speaking, there has been a lack 
of information and scientific consensus regarding the

[[Page 36372]]

potential effects of scientific sonars on marine mammals, which may 
differ depending on the system and species in question as well as the 
environment in which the system is operated. We are currently working 
to ensure that the use of these types of active acoustic sources is 
considered consistently and look forward to the Commission's advice as 
we proceed.
    With regard to revision of existing behavioral harassment criteria, 
NMFS agrees that this is necessary. NMFS is continuing our examination 
of the effects of noise on marine mammal behavior and plans to focus 
our work in the coming years on developing guidance regarding the 
effects of anthropogenic sound on marine mammal behavior. Behavioral 
response is a complex question and we have determined that additional 
time is needed to research and address it appropriately.
    Comment 2: The Commission recommends that OPR require NWFSC to 
estimate the numbers of marine mammals taken by Level B harassment 
incidental to use of active acoustic sources (e.g., echosounders) based 
on the 120-decibel (dB) rather than the 160-dB root mean square (rms) 
threshold.
    Response: Please see our notice of proposed rulemaking (81 FR 
38516; June 13, 2016) for discussion related to acoustic terminology 
and thresholds. The Commission repeats a recommendation made in prior 
letters and, as we have previously indicated, we disagree with the 
recommendation. Our previous response is repeated below.
    Continuous sounds are those whose sound pressure level remains 
above that of the ambient sound, with negligibly small fluctuations in 
level (NIOSH, 1998; ANSI, 2005), while intermittent sounds are defined 
as sounds with interrupted levels of low or no sound (NIOSH, 1998). 
Thus, echosounder signals are not continuous sounds but rather 
intermittent sounds. Intermittent sounds can further be defined as 
either impulsive or non-impulsive. Impulsive sounds have been defined 
as sounds which are typically transient, brief (<1 sec), broadband, and 
consist of a high peak pressure with rapid rise time and rapid decay 
(ANSI, 1986; NIOSH, 1998). Echosounder signals also have durations that 
are typically very brief (<1 sec), with temporal characteristics that 
more closely resemble those of impulsive sounds than non-impulsive 
sounds, which typically have more gradual rise times and longer decays 
(ANSI, 1995; NIOSH, 1998). With regard to behavioral thresholds, we 
consider the temporal and spectral characteristics of echosounder 
signals to more closely resemble those of an impulse sound than a 
continuous sound.
    The Commission suggests that, for certain sources considered here, 
the interval between pulses would not be discernible to the animal, 
rendering them effectively continuous. However, echosounder pulses are 
emitted in a similar fashion as odontocete echolocation click trains. 
Research indicates that marine mammals, in general, have extremely fine 
auditory temporal resolution and can detect each signal separately 
(e.g., Au et al., 1988; Dolphin et al., 1995; Supin and Popov, 1995; 
Mooney et al., 2009), especially for species with echolocation 
capabilities. Therefore, it is highly unlikely that marine mammals 
would perceive echosounder signals as being continuous.
    In conclusion, echosounder signals are intermittent rather than 
continuous signals, and the fine temporal resolution of the marine 
mammal auditory system allows them to perceive these sounds as such. 
Further, the physical characteristics of these signals indicate a 
greater similarity to the way that intermittent, impulsive sounds are 
received. Therefore, the 160-dB threshold (typically associated with 
impulsive sources) is more appropriate than the 120-dB threshold 
(typically associated with continuous sources) for estimating takes by 
behavioral harassment incidental to use of such sources. This response 
represents the consensus opinion of acoustics experts from NMFS' Office 
of Protected Resources and Office of Science and Technology.
    Comment 3: The Commission notes that NMFS has delineated two 
categories of acoustic sources, largely based on frequency, with those 
sources operating at frequencies greater than the known hearing ranges 
of any marine mammal (i.e., >180 kilohertz (kHz)) lacking the potential 
to cause disruption of behavioral patterns. The Commission describes 
the recent scientific literature on acoustic sources with frequencies 
above 180 kHz (i.e., Deng et al., 2014; Hastie et al., 2014) and 
recommends that we estimate numbers of takes associated with those 
acoustic sources (or similar acoustic sources) with frequencies above 
180 kHz that have been shown to elicit behavioral responses above the 
120-dB threshold.
    Response: We considered the information cited by the Commission in 
our proposed rulemaking. NMFS's response regarding the appropriateness 
of the 120-dB versus 160-dB rms thresholds was provided above in the 
response to Comment #2. In general, the referenced work indicates that 
``sub-harmonics'' could be ``detectable'' by certain species at 
distances up to several hundred meters (m). However, this detectability 
is in reference to ambient noise, not to NMFS's established 160-dB 
threshold for assessing the potential for incidental take for these 
sources. A behavioral response to a stimulus does not necessarily 
indicate that Level B harassment, as defined by the MMPA, has occurred. 
Source levels of the secondary peaks considered in these studies--those 
within the hearing range of some marine mammals--range from 135-166 dB, 
meaning that these sub-harmonics would either be below the threshold 
for behavioral harassment or would attenuate to such a level within a 
few meters. Beyond these important study details, these high-frequency 
(i.e., Category 1) sources and any energy they may produce below the 
primary frequency that could be audible to marine mammals would be 
dominated by a few primary sources (e.g., EK60) that are operated near-
continuously--much like other Category 2 sources considered in our 
assessment of potential incidental take from NWFSC's use of active 
acoustic sources--and the potential range above threshold would be so 
small as to essentially discount them.

Mitigation

    In order to issue an incidental take authorization 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 subsistence uses. We provided a full description of the 
planned mitigation measures, including background discussion related to 
certain elements of the mitigation plan, in our notice of proposed 
rulemaking (81 FR 38516; June 13, 2016). Please see that document for 
more detail.
    NMFS has considered many potential mitigation measures, including 
those the NWFSC has determined to be feasible and has implemented in 
recent 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 on trawl gear, as well as use of a marine mammal 
excluder device (MMED) in Nordic 264 trawl nets.

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General Measures

    Coordination and communication--We require that the NWFSC take all 
necessary measures to coordinate and communicate in advance of each 
specific survey with NOAA's Office of Marine and Aviation Operations 
(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 event-contingent 
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. NWFSC will coordinate and conduct briefings at the outset of 
each survey and as necessary between the 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. The chief 
scientist (CS) will be responsible for coordination with the Officer on 
Deck (OOD; or equivalent on non-NOAA platforms) to ensure that 
requirements, procedures, and decision-making processes are understood 
and properly implemented.
    Vessel speed--Vessel speed during active sampling rarely exceeds 5 
knots (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 standing watch or dedicated marine mammal observer 
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 NWFSC 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 remotely-operated 
vehicle (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 NWFSC 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--The NWFSC will implement a number of handling 
protocols to minimize potential harm to marine mammals that are 
incidentally taken during the course of fisheries research activities. 
In general, protocols have already been prepared for use on commercial 
fishing vessels. Because incidental take of marine mammals in fishing 
gear is similar for commercial fisheries and research surveys, NWFSC 
proposes to adopt these protocols, which are expected to increase post-
release survival. 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. NWFSC staff will be 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.

Trawl Survey Visual Monitoring and Operational Protocols

    Specific mitigation protocols are required for all trawl operations 
conducted by the NWFSC using Nordic 264 surface trawl gear, midwater 
trawl gear (modified Cobb, Aleutian Wing, and various commercial nets), 
and bottom trawl gear (double-rigged shrimp, Poly Nor'easter, modified 
Aberdeen, beam, and various commercial nets). Separate protocols 
(described below) are in place for the Kodiak surface trawl and pair 
trawl gear. Marine mammal watches will be conducted for at least ten 
minutes prior to the beginning of the planned set and throughout the 
tow and net retrieval, by scanning the surrounding waters with the 
naked eye and rangefinding binoculars (or monocular). 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. The CS must confirm with the OOD that no marine mammals have 
been seen within 500 m (or as far as may be observed if less than 500 
m) of the ship or appear to be approaching the ship during the pre-set 
watch period prior to the deployment of any trawl gear. During 
nighttime operations, visual observation may be conducted using the 
naked eye and available vessel lighting but effectiveness is limited. 
The visual observation period typically occurs during transit leading 
up to arrival at the sampling station, rather than upon arrival on 
station. However, in some cases it may be necessary to conduct a 
plankton tow or other small net cast prior to deploying trawl gear. In 
these cases, the visual watch will continue until trawl gear is ready 
to be deployed. Aside from pre-trawl monitoring, the OOD/CS and crew 
standing watch will visually scan for marine mammals during all daytime 
operations.
    It is important to note that the 500 m distance is provided only as 
a frame of reference for marine mammal observations that would 
nominally be of greater concern as regards the potential for 
interaction with research fishing gear. The primary concern is to avoid 
all marine mammal interactions (regardless of the numbers of takes 
proposed for authorization here), and the most appropriate course of 
action to achieve this goal in any given instance is likely to be 
related more to event-specific elements than to an arbitrary distance 
from the vessel. Depending on unpredictable contextual elements, 
animals sighted at distances greater than 500 m could provoke 
mitigation action or, conversely, animals sighted at closer range could 
be determined to not be at risk of interacting with research fishing 
gear. The NWFSC considers 500 m to be the average effective observation 
distance, but the actual effective range is determined by numerous 
factors related to the weather, ship observations, and the species 
observed.
    The primary purpose of conducting pre-trawl visual monitoring is to 
implement the move-on rule. If marine mammals are sighted within 500 m 
(or as far as may be observed if less than 500 m) of the vessel and are 
considered at risk of interacting with the vessel or research gear, or 
appear to be approaching the vessel and are considered at risk of 
interaction, NWFSC may elect to either remain onsite to see if the 
animals move off or may move on to another sampling location. When 
remaining onsite, the set is delayed (typically for at least ten 
minutes) and, if the animals depart or appear to no longer be at risk 
of interacting with the vessel or gear, a further ten minute 
observation period is

[[Page 36374]]

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 section of the sampling area, move-
on rule mitigation protocols would begin anew. If, after moving on, 
marine mammals remain at risk of interaction, the CS or watch leader 
may decide to move again or to skip the station. Marine mammals that 
are sighted further than 500 m from the vessel would be monitored to 
determine their position and movement in relation to the vessel. If 
they appear to be closing on the vessel, the move-on rule protocols may 
be implemented even if they are initially further than 500 m from the 
vessel.
    For surface trawl surveys (i.e., those surveys deploying the Nordic 
264 net), which have historically presented the greatest risk of marine 
mammal interaction, dedicated crew are assigned to marine mammal 
monitoring duty (i.e., have no other tasks) and care is taken to 
provide some rest periods for observers to avoid fatigue. At least two 
pairs of binoculars are available for verification of potential 
sightings. As the vessel approaches the station, the OOD and at least 
one assigned member of the scientific party monitor for marine mammals. 
Within several minutes of arriving on station and finishing their 
sampling duties, two additional members of the scientific party are 
assigned to monitor for marine mammals and, for the remainder of the 
tow, there would be a minimum of three members of the scientific party 
watching for marine mammals. Depending on the situational context 
(e.g., numbers of marine mammals seen during the station approach or 
expected at that particular place and season), additional crew may be 
assigned to stand watch as necessary to provide full monitoring 
coverage around the vessel. Up to eight observers in total (including 
ship's crew standing watch) may be on duty during active trawling. The 
focus on the full area around the ship continues until trawl retrieval 
begins, at which point observational focus turns to the stern and the 
trawl net itself.
    For midwater and bottom trawl surveys, the pre-set watch period is 
conducted by the OOD and bridge crew and typically occurs during 
transit prior to arrival at the sampling station but may also include 
time on station if other types of gear or equipment (e.g., bongo nets) 
are deployed before the trawl. For these trawls, risk of interaction 
during the tow is lower and monitoring effort is reduced to the bridge 
crew until trawl retrieval.
    For all surveys, although the minimum pre-set watch period is ten 
minutes, the actual monitoring period is typically longer. During 
standard trawl operations, at least some of the trackline to be towed 
is typically traversed prior to setting gear in order to check for 
hazards. On surface trawl surveys, CTD casts and plankton/bongo net 
hauls are made prior to setting the trawl. These activities can take 
25-35 minutes after the vessel arrives on station, depending on water 
depth, and monitoring for marine mammals continues throughout these 
activities. Midwater trawls and bottom trawls do not typically deploy 
other gears before deploying trawl gear, but reconnaissance of the 
trackline often takes ten to fifteen minutes after arriving on station. 
In addition, once the decision is made to deploy the trawl gear, 
monitoring continues while the net is unspooled, which may take about 
ten minutes. Before the trawl doors are deployed, the net floats closed 
on the surface behind the vessel, and appropriate actions can be taken 
if marine mammals are sighted near the ship. Therefore, the marine 
mammal monitoring period--which begins before the vessel arrives on 
station and extends continuously through gear deployment--typically 
extends for over thirty minutes for all trawl types.
    The effectiveness of visual monitoring may be limited depending on 
weather and lighting conditions. The OOD, CS, or watch leader will 
determine the best strategy to avoid potential takes of marine mammals 
based on the species encountered and their numbers and behavior, 
position, and vector relative to the vessel, as well as any other 
factors. For example, a whale transiting through the sampling area in 
the distance may only require a short move from the designated station, 
whereas a pod of dolphins in close proximity to the vessel may require 
a longer move from the station or possibly cancellation of the planned 
tow if the group follows the vessel.
    In general, trawl operations will be conducted immediately upon 
arrival on station (and on conclusion of the pre-watch period) in order 
to minimize the time during which marine mammals (particularly 
pinnipeds) may become attracted to the vessel. However, in some cases 
it will be necessary to conduct small net tows (e.g., bongo net) prior 
to deploying trawl gear.
    Once the trawl net is in the water, the OOD, CS, and/or crew 
standing watch will continue to visually monitor the surrounding waters 
and will 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 
marine mammal interaction 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 past experience operating 
trawl gears around marine mammals (i.e., best professional judgment) 
and on NWFSC training sessions that will 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 such events). Best professional judgment takes into 
consideration the species, numbers, and behavior of the animals, the 
status of the trawl net operation (e.g., 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. 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 
consider 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 NWFSC 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 animals are believed to have departed the 
area. This decision is at the discretion of the OOD/CS and is dependent 
on the situation.
    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 thirty 
minutes at the target depth will typically be implemented, excluding 
deployment and retrieval time (which may require an additional thirty 
minutes, depending on target depth), to reduce the likelihood of 
attracting and incidentally taking marine mammals. Short tow durations 
decrease the opportunity for marine mammals to find the vessel and 
investigate. Trawl tow distances will be

[[Page 36375]]

less than 3 nautical miles (nmi)--typically 1-2 nmi, depending on the 
specific survey and trawl speed--which is expected to reduce the 
likelihood of attracting and incidentally taking marine mammals. In 
addition, care will be taken when emptying the trawl to avoid damage to 
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 are 
present. 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 device--Excluder devices are specialized 
modifications, typically used in trawl nets, which are designed to 
reduce bycatch by allowing non-target taxa to escape the net. These 
devices generally consist of a grid of bars fitted into the net that 
allow target species to pass through the bars into the codend while 
larger, unwanted taxa (e.g., turtles, sharks, mammals) strike the bars 
and are ejected through an opening in the net. Marine mammal excluder 
devices (MMED) have not been proven to be fully effective at preventing 
marine mammal capture in trawl nets (e.g., Chilvers, 2008) and are not 
expected to prevent marine mammal capture in NWFSC trawl surveys. It is 
difficult to effectively test such devices, in terms of effectiveness 
in excluding marine mammals as opposed to effects on target species 
catchability, because realistic field trials would necessarily involve 
marine mammal interactions with trawl nets. Use of artificial 
surrogates in field trials has not been shown to be a realistic 
substitute (Gibson and Isakssen, 1998). Nevertheless, we believe it 
reasonable to assume that use of MMEDs may reduce the likelihood of a 
given marine mammal interaction with trawl gear resulting in mortality. 
We do not infer causality, but note that annual marine mammal 
interactions with the Nordic 264 trawl net have been much reduced for 
NMFS's Southwest Fisheries Science Center (SWFSC) (relative to 2008) 
since their use of the MMED began.
    Multiple types of midwater trawl nets are used in NWFSC trawl 
surveys. The Nordic 264 trawl net, used as a surface trawl by NWFSC, is 
generally much larger than the midwater trawls, is fished at faster 
speeds, and has a different shape and functionality than these nets. 
Very few marine mammal interactions with NWFSC pelagic trawl gear have 
involved nets other than the Nordic 264 (one of 37 total incidents 
since 1999). Therefore, MMED use is not proposed for nets other than 
the Nordic 264.
    The NWFSC has tested the MMED design used by the SWFSC and found 
that it caused a significant loss of some salmon species that were the 
target of their research. More recent experiments have used video 
cameras attached to the net opening and near the excluder device to 
test different configurations of the excluder device to minimize loss 
of target species. The experiments have looked at adding weight and 
stiffeners to the flap covering the escape hatch to keep it closed and 
flipping the MMED so the escape hatch faces down rather than up. Based 
on preliminary results, this downward-pointing escape hatch appears to 
be the best design for minimizing loss of target species. Additional 
research will be necessary to calibrate catch levels in tows with the 
excluder device compared to past tows that did not contain the excluder 
(i.e., to align the new catchability rates with historical data sets). 
During these configuration and calibration experiments some nets will 
be fished without the MMED in order to provide controls for 
catchability. Once the NWFSC completes these experiments the MMED will 
be used in all future trawls with the Nordic 264. Please see 
``Monitoring and Reporting'' for additional discussion.
    Acoustic deterrent devices--Acoustic deterrent devices (pingers) 
are underwater sound-emitting devices that have been shown to decrease 
the probability of interactions with certain species of marine mammals 
when fishing gear is fitted with the devices. Multiple studies have 
reported significant decreases in marine mammal interactions with 
fishing gear following pinger deployment, with results reported for 
multiple species and gears (e.g., Kraus et al., 1997; Trippel et al., 
1999; Gearin et al., 2000; Palka et al., 2008; Barlow and Cameron, 
2003, Carretta et al., 2008; Carretta and Barlow, 2011). Pingers will 
be deployed during all surface trawl operations (i.e., using the Nordic 
264 net), with two pairs of pingers installed near the net opening. The 
vessel's crew will ensure that pingers are operational prior to 
deployment. Pinger brands typically used by NWFSC include the Aquatec 
Subsea Limited model AQUAmark and Fumunda Marine models F10 and F70, 
with the following attributes: (1) Operational depth of 10-200 m; (2) 
tones range from 200-400 ms in duration, repeated every five to six 
seconds; (3) variable frequency of 10-160 kHz; and (4) maximum source 
level of 145 dB rms re 1 [mu]Pa.
    Kodiak surface trawl and pair trawl gear--The Kodiak surface trawl, 
used only in Puget Sound, has only limited potential for marine mammal 
interaction. This gear type is a small net towed at slow speeds (about 
2 kn) as close to shore as the net can be fished, and these 
characteristics mean that marine mammals would likely be able to avoid 
the net or swim out of it if necessary. However, rules for cetaceans 
would be similar as for other net types (i.e., delay and/or move-on if 
cetaceans observed within approximately 500 m or clearly approaching 
from greater distance). If killer whales are observed at any distance, 
the net would not be deployed, and the move-on rule would be invoked.
    The pair trawl is used only in the Columbia River and is fished 
with an open codend. Although unlikely, there is some potential for 
pinnipeds to become entangled in the net material. NWFSC's practice, 
which would be allowed under section 109(h) of the MMPA, is to deter 
pinnipeds from encountering the net using pyrotechnic devices and other 
measures. Therefore, separate mitigation is not warranted, and we do 
not discuss NWFSC deterrence of pinnipeds associated with pair trawl 
surveys further in this document. Please see the NWFSC's Programmatic 
Environmental Assessment (EA) for further information about this 
practice.

Longline and Other Hook and Line 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 during the 30-minute 
period 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

[[Page 36376]]

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, haul-back 
may be postponed. These decisions are at the discretion of the OOD/CS 
and are dependent on the situation. If killer whales are observed at 
any distance, the set would not occur and the move-on rule would be 
invoked.
    Other types of hook and line surveys (e.g., rod and reel) generally 
use the same protocols as longline surveys. However, for hook and line 
surveys in Puget Sound the move-on rule is not required for pinnipeds 
because they are commonly abundant on shore nearby hook and line 
sampling locations. Use of the move-on rule in these circumstances 
would represent an impracticable impact on NWFSC survey operations, and 
we note that no marine mammals have ever been captured in NWFSC hook 
and line surveys. However, the NWFSC would implement the move-on rule 
for hook and line surveys in Puget Sound for any cetaceans that are 
within 500 m and may be at risk of interaction with the survey 
operation. If killer whales are observed at any distance, fishing would 
not occur.
    As for trawl surveys, some standard survey protocols are expected 
to minimize the potential for marine mammal interactions. Soak times 
are typically short relative to commercial fishing operations, measured 
from the time the last hook is in the water to when the first hook is 
brought out of the water. NWFSC longline protocols specifically 
prohibit chumming (releasing additional bait to attract target species 
to the gear) and spent bait and offal is retained on the vessel until 
all gear has been retrieved. Some hook and line surveys use barbless 
hooks, which are less likely to injure a hooked animal.

Seine Survey Visual Monitoring and Operational Protocols

    Visual monitoring and operational protocols for seine surveys are 
similar to those described previously for trawl surveys, with a focus 
on visual observation in the survey area and avoidance of marine 
mammals that may be at risk of interaction with survey vessels or gear. 
For purse seine operations, visual monitoring is focused on avoidance 
of cetaceans and aggregations of pinnipeds. Individual or small numbers 
of pinnipeds may be attracted to purse seine operations, especially in 
Puget Sound, and are frequently observed to enter operational purse 
seines to depredate the catch and exit the net unharmed. Use of the 
move-on rule in these circumstances would represent an impracticable 
impact on NWFSC survey operations, and we note that no marine mammals 
have ever been captured in NWFSC seine surveys.
    If pinnipeds are in the immediate vicinity of a purse seine survey, 
the set may be delayed until animals move away or the move-on rule is 
determined to be appropriate, but the net would not be opened if 
already deployed and pinnipeds enter it. However, delay would not be 
invoked if only few pinnipeds are present (e.g., less than five), and 
they do not appear to obviously be at risk.
    If any dolphins or porpoises are observed within approximately 500 
m of the purse seine survey location, the set would be delayed. If any 
dolphins or porpoises are observed in the net, the net would be 
immediately opened to free the animals. If killer whales or other large 
whales are observed at any distance the net would not be set, and the 
move-on rule would be invoked.
    Beach seines are typically set nearshore by small boat crews, who 
visually survey the area prior to the set. The set would not be made 
within 200 m of any hauled pinnipeds. Otherwise, marine mammals are 
unlikely to be at risk of interaction with NWFSC beach seine 
operations, as the nets are relatively small and deployed and retrieved 
slowly. If a marine mammal is observed attempting to interact with the 
beach seine gear, the gear would immediately be lifted and removed from 
the water.
    Tangle net protocols--Tangle nets are used only in the Columbia 
River. NWFSC attempts to avoid pinnipeds by rotating sampling locations 
on a daily basis and by avoiding fishing near haulout areas. However, 
as was described for NWFSC use of pair trawl gear in the LCRRA, NWFSC 
also deters pinnipeds from interacting with tangle net gear as 
necessary using pyrotechnic devices and visual presence, a practice 
allowed under section 109(h) of the MMPA. Therefore, we do not discuss 
NWFSC deterrence of pinnipeds associated with tangle net surveys 
further in this document. Please see the NWFSC's draft Programmatic EA 
for further information about this practice. If pinniped presence in 
the vicinity of tangle net surveys is so abundant as to be 
uncontrollable through deterrence, sampling would be discontinued for a 
given day.
    We have carefully evaluated the NWFSC'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. Our evaluation of potential measures included consideration of 
the following factors in relation to one another: (1) The manner in 
which, and the degree to which, the successful implementation of the 
measure is expected to minimize adverse impacts to marine mammals, (2) 
the proven or likely efficacy of the specific measure to minimize 
adverse impacts as planned; and (3) the practicability of the measure 
for applicant implementation.
    Any mitigation measure(s) we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal);
    (2) A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only);
    (3) A reduction in the number (total number or number at a 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only);
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only);
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time; and
    (6) For monitoring directly related to mitigation, an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the NWFSC's proposed measures, as well 
as

[[Page 36377]]

other measures we considered, 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.

Description of Marine Mammals in the Area of the Specified Activity

    We previously reviewed NWFSC'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 referred readers to Sections 3 and 4 of NWFSC's 
application, as well as to NMFS's Stock Assessment Reports (SARs; 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments). We also provided information related to all species 
with expected potential for occurrence in the specified geographical 
region where NWFSC plans to conduct the specified activities, 
summarizing information related to the population or stock, including 
potential biological removal (PBR). Current information, as reported in 
the most recent final 2016 and draft 2017 SARs, is summarized in Table 
1 below (Carretta et al., 2017; Muto et al., 2017; 
www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

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[GRAPHIC] [TIFF OMITTED] TR27JY18.345

BILLING CODE 3510-22-C

    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).

[[Page 36382]]

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    We provided a summary and discussion of the ways that components of 
the specified activity may impact marine mammals and their habitat in 
our notice of proposed rulemaking (81 FR 38516; June 13, 2016). 
Specifically, we considered potential effects to marine mammals from 
ship strike, physical interaction with various gear types, use of 
active acoustic sources, and visual disturbance of pinnipeds, as well 
as effects to prey species and to acoustic habitat. The information is 
not reprinted here.

Estimated Take by Incidental Harassment, Serious Injury, or Mortality

    Except with respect to certain activities not pertinent here, 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). Serious injury means any injury that 
will likely result in mortality (50 CFR 216.3).
    Take of marine mammals incidental to NWFSC research activities 
could occur as a result of (1) injury or mortality due to gear 
interaction (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 (Level B 
harassment only).

Estimated Take Due to Gear Interaction

    Historical Interactions--In order to estimate the number of 
potential incidents of take that could occur by M/SI through gear 
interaction, we first considered NWFSC's record of past such incidents, 
and then considered in addition other species that may have similar 
vulnerabilities to NWFSC trawl gear as those species for which we have 
historical interaction records. Historical interactions with NWFSC 
research gear were described in Table 4 of our notice of proposed 
rulemaking (81 FR 38516; June 13, 2016). Please see that document for 
more information. Available records are for the years 1999 through 
present. All historical interactions have taken place in the CCRA, 
offshore Washington and Oregon, and have occurred during use of the 
Nordic 264 surface trawl net, with a few exceptions. There is one 
historical interaction in the PSRA (also using the Nordic 264 surface 
trawl), and one CCRA historical interaction using the modified Cobb 
midwater trawl. NWFSC has no historical interactions for any bottom 
trawl, hook and line, or seine gear, and has no historical interactions 
in the LCRRA. Please see Figure 6-1 in the NWFSC request for 
authorization for specific locations of these incidents.
    Although some historical interactions resulted in the animal(s) 
being released alive, no serious injury determinations (NMFS, 2012a; 
2012b) were made, and it is possible that some of these animals later 
died. In order to use these historical interaction records in a 
precautionary manner 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. Over 
the past seventeen years, NWFSC has had only infrequent interactions 
with marine mammals, with 0.1-0.5 animals captured per year for the 
pinniped species and 1.4 animals captured per year for the Pacific 
white-sided dolphin. No Steller sea lion has been captured since 2002, 
northern fur seals have been involved in only one incident (none since 
2000), and only a few California sea lions and harbor seals have been 
involved in interactions with research fishing gear. However, we assume 
that any of these species could be captured in any year.
    In order to produce the most precautionary take estimates possible, 
we consider all of the data available to us (i.e., since 1999). In 
consideration of these interaction records, we assume that one 
individual of each species of otariid pinniped could be captured per 
year over the course of the five-year period of validity for these 
proposed regulations, that two individual harbor seals could be 
captured per year, and that the worst case event could happen each year 
for Pacific white-sided dolphins (i.e., six dolphins could be captured 
in a single trawl in each year). Table 2 shows the projected five-year 
total captures of these five species for this final rule, as described 
above, for trawl gear only. Although more than one individual of the 
two sea lion species has been captured in a single tow, interactions 
with these species have historically occurred only infrequently, and we 
believe that the above assumption appropriately reflects the likely 
total number of individuals involved in research gear interactions over 
a five-year period. We assume that two total harbor seals could be 
captured per year in recognition of the demonstrated vulnerability to 
capture in the PSRA (all other species have been captured only in the 
CCRA). These estimates are based on the assumption that annual effort 
(e.g., total annual trawl tow time) over the five-year authorization 
period will not exceed the annual effort during prior years for which 
we have interaction records.

                                 Table 2--Projected Five-Year Total Take in Trawl Gear for Historically Captured Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  CCRA average annual take      PSRA average annual take
             Gear                          Species                         (total)                       (total)              Projected 5-year total 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Trawl........................  Pacific white-sided dolphin....                        6 (30)  ............................                            30
                               California sea lion............                         1 (5)  ............................                             5
                               Harbor seal....................                         1 (5)                         1 (5)                            10
                               Northern fur seal..............                         1 (5)  ............................                             5
                               Steller sea lion...............                         1 (5)  ............................                             5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Because there are no historical take records from the LCRRA, we incorporate all projected LCRRA takes in Table 3 below.

    In order to estimate the total potential number of incidents of M/
SI that could occur incidental to the NWFSC's use of trawl, hook and 
line, and seine gear over the five-year period of validity for these 
regulations (i.e., takes additional to those described in Table 4 of 
our notice of proposed rulemaking (81 FR 38516; June 13, 2016)), we 
first considered whether there are additional species that may have 
similar vulnerability to capture in trawl gear as the five species 
described above that have been taken historically and then evaluate the

[[Page 36383]]

potential vulnerability of these and other species to additional gears.
    In order to evaluate the potential vulnerability of additional 
species to trawl and of all species to hook and line and seine gear, we 
first consulted NMFS's 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. We provided this information, as 
presented in the 2015 LOF (79 FR 77919; December 29, 2014), in Table 6 
of our notice of proposed rulemaking (81 FR 38516; June 13, 2016) and 
do not reproduce it here.
    Information related to incidental M/SI in relevant commercial 
fisheries is not, however, the sole determinant of whether it may be 
appropriate to authorize M/SI incidental to NWFSC survey operations. A 
number of factors (e.g., species-specific knowledge regarding animal 
behavior, overall abundance in the geographic region, density relative 
to NWFSC survey effort, feeding ecology, propensity to travel in groups 
commonly associated with other species historically taken) were taken 
into account by the NWFSC 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 NWFSC 
research gear. Similarly, we have determined that some species groups 
with documented M/SI are not likely to be vulnerable to capture in 
NWFSC gear. In these instances, we provide further explanation below. 
Those species with no records of historical interaction with NWFSC 
research gear and no documented M/SI in relevant commercial fisheries, 
and for which the NWFSC has not requested the authorization of 
incidental take, are not considered further in this section. The NWFSC 
believes generally that any sex or age class of those species for which 
take authorization is requested could be captured.
    In order to estimate a number of individuals that could potentially 
be captured in NWFSC research gear for those species not historically 
captured, we first determine which species may have vulnerability to 
capture in a given gear. Of those species, we then determine whether 
any may have similar propensity to capture in a given gear as a 
historically captured species. These species are limited to a few 
delphinid species that we believe may have similar risk of capture as 
that displayed by the Pacific white-sided dolphin. For these species, 
we assume it is possible that a worst-case scenario of take could occur 
while at the same time contending that, absent significant range shifts 
or changes in habitat usage, capture of a species not historically 
captured would likely be a very rare event. The former assumption also 
accounts for the likelihood that, for species that often travel in 
groups, an incident involving capture of that species is likely to 
involve more than one individual.
    For example, we believe that the Risso's dolphin is potentially 
vulnerable to capture in trawl gear and may have similar propensity to 
capture in that gear as does the Pacific white-sided dolphin. Because 
the greatest number of Pacific white-sided dolphins captured in any one 
trawl tow was six individuals, we assume that six Risso's dolphins 
could also be captured in a single incident. However, in recognition of 
the fact that any incident involving the capture of Risso's dolphins 
would likely be a rare event, we propose a total take authorization 
over the five-year period of the number that may result from a single, 
worst-case incident (six dolphins). While we do not necessarily believe 
that six Risso's dolphins would be captured in a single incident--and 
that more capture incidents involving fewer individuals could occur, as 
opposed to a single, worst-case incident--we believe that this is a 
reasonable approach to estimating potential incidents of M/SI while 
balancing what could happen in a worst-case scenario with the potential 
likelihood that no incidents of capture would actually occur. The SWFSC 
historical capture of northern right whale dolphins in 2008 provides an 
instructive example of a situation where a worst-case scenario (six 
dolphins captured in a single trawl tow) did occur, but overall capture 
of this species was very rare (no other capture incidents before or 
since).
    Separately, for those species that we believe may have a 
vulnerability to capture in given gear but that we do not believe may 
have a similar propensity to capture in that gear as a historically-
captured species, we assume that capture would be a rare event such 
that authorization of a single take over the five-year period is likely 
sufficient to capture the risk of interaction. For example, from the 
LOF we infer vulnerability to capture in trawl gear for the Dall's 
porpoise but do not believe that this species has a similar propensity 
for interaction in trawl gear as the Pacific white-sided dolphin.
    Trawl: From the LOF and SWFSC historical gear interactions, we 
infer vulnerability to trawl gear in the CCRA for the Risso's dolphin, 
short- and long-beaked common dolphins, northern right whale dolphin, 
Dall's porpoise, harbor porpoise, and bottlenose dolphin (offshore 
stock only; NWFSC research has very little overlap with the 
distribution of the coastal stock of bottlenose dolphin). We consider 
some of these species to have a similar propensity for interaction with 
trawl gear as that demonstrated by the Pacific white-sided dolphin 
(Risso's dolphin, northern right whale dolphin) and the rest to have 
lower risk of interaction.
    Due to their likely presence in the relevant areas and inference 
based on historical interactions and the LOF, we assume additional 
vulnerability and therefore potential take for some of these species in 
trawl gear used in the PSRA and LCRRA. In the PSRA, these include the 
harbor porpoise, Dall's porpoise, California sea lion, and Steller sea 
lion. In the LCRRA these include the harbor porpoise, harbor seal, 
California sea lion, and Steller sea lion.
    For the striped dolphin, we believe that there is a reasonable 
likelihood of incidental take in trawl gear although there are no 
records of incidental M/SI in relevant commercial fisheries. The 
proposed take authorization for this species was determined to be 
appropriate based on analogy to other similar species that have been 
taken either in NWFSC operations or in analogous commercial fishery 
operations. We believe that the striped dolphin has a similar 
propensity for interaction with trawl gear as that demonstrated by the 
Pacific white-sided dolphin.
    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. This is only likely to occur in 
the CCRA due to the greater diversity of pinniped and small cetacean 
species likely to be encountered in that area. Therefore, the NWFSC has 
requested the authorization of incidental M/SI for one unidentified 
pinniped and one unidentified small cetacean over the course of the 
five-year period of proposed authorization.
    Hook and line: The process is the same as is described above for 
trawl gear. From the LOF and SWFSC historical interactions, we infer

[[Page 36384]]

vulnerability to hook and line gear in the CCRA for the Risso's 
dolphin, bottlenose dolphin, striped dolphin, pygmy and dwarf sperm 
whale (i.e., Kogia spp.), short- and long-beaked common dolphins, 
short-finned pilot whale, and California and Steller sea lions.
    Due to their likely presence in the relevant areas and inference 
based on historical interactions and the LOF, we assume additional 
vulnerability and therefore potential take for some of these species in 
hook and line gear used in the PSRA (hook and line gear is not used in 
the LCRRA). These include the California sea lion and harbor seal.
    Seine: The process is the same as is described above for trawl 
gear. From the LOF, we infer vulnerability to seine and tangle net gear 
in the CCRA and/or LCRRA for the short-beaked common dolphin, harbor 
seal, and California sea lion. Long-beaked common dolphin is not 
included because they are much rarer in Oregon and Washington where 
seine surveys are conducted. Seine gear is used infrequently in the 
PSRA (e.g., twelve purse seine sets per year) and the move-on rule 
applied if any small cetacean is seen within 500 m of the planned set. 
We do not believe that any take in seine gear is likely in the PSRA.
    We also believe that there is a reasonable potential of seine gear 
interaction for a number of species in the CCRA and/or LCRRA for which 
there are no LOF records of interaction in commercial fisheries gears. 
These authorizations reflect the NWFSC's expert judgment regarding the 
distribution of these species in relation to NWFSC use of seine gear 
offshore Oregon and Washington. For example, several of these species 
have the potential to interact with NWFSC purse seine surveys in the 
Columbia River plume, where there are no corresponding commercial seine 
fisheries. Therefore, we would not expect the LOF to adequately reflect 
the risk of marine mammal interaction posed by NWFSC survey activities. 
Species for which we authorize take in seine gear in the CCRA and/or 
LCRRA with no LOF interaction records include the Dall's porpoise, 
Pacific white-sided dolphin, Risso's dolphin, northern right whale 
dolphin, Steller sea lion, and harbor porpoise. For the harbor 
porpoise, we expect that there is greater vulnerability to take in 
these gears (i.e., we expect it could be taken in both the CCRA and 
LCRRA) and have increased the take authorization relative to the other 
species accordingly. NWFSC considers the delphinid species to be at 
risk because of their occurrence in coastal waters offshore Oregon and 
Washington, and because they often occur in mixed schools and could be 
caught together in purse seines.

                         Table 3--Total Estimated M/SI Due to Gear Interaction, 2018-23
----------------------------------------------------------------------------------------------------------------
                                                          Estimated 5-year
             Species                 Estimated 5-year     total, hook and      Estimated 5-year     Total, all
                                     total, trawl \1\         line \1\         total, seine \1\        gears
----------------------------------------------------------------------------------------------------------------
Kogia spp. \2\...................  ...................  1..................  ...................               1
Bottlenose dolphin \3\...........  1..................  1..................  ...................               2
Striped dolphin..................  6..................  1..................  ...................               7
Short-beaked common dolphin......  1..................  1..................  1..................               3
Long-beaked common dolphin.......  1..................  1..................  ...................               2
Pacific white-sided dolphin......  30.................  ...................  1..................              31
Northern right whale dolphin.....  6..................  ...................  1..................               7
Risso's dolphin..................  6..................  1..................  1..................               8
Short-finned pilot whale.........  ...................  1..................  ...................               1
Harbor porpoise \4\..............  3 (CCRA/PSRA/LCRRA)  ...................  2 (CCRA/LCRRA).....               5
Dall's porpoise..................  2 (CCRA/PSRA)......  ...................  1..................               3
Northern fur seal \5\............  5..................  ...................  ...................               5
California sea lion..............  7 (5 CCRA/PSRA/      2 (CCRA/PSRA)......  1 (LCRRA)..........              10
                                    LCRRA).
Steller sea lion.................  7 (5 CCRA/PSRA/      1..................  1 (LCRRA)..........               9
                                    LCRRA).
Harbor seal \4\..................  11 (5 CCRA/5 PSRA/   1 (PSRA)...........  1 (LCRRA)..........              13
                                    LCRRA.
Unidentified pinniped............  1..................  ...................  ...................               1
Unidentified small cetacean......  1..................  ...................  ...................               1
----------------------------------------------------------------------------------------------------------------
\1\ Please see our notice of proposed rulemaking (81 FR 38516; June 13, 2016) for full detail related to
  derivation of these take estimates. Takes proposed for authorization are not specific to any area, but our
  estimates are informed by area-specific vulnerability. All takes are expected to occur in the CCRA, except
  where the gear-specific breakdown of expected takes per area is provided. Note that hook and line surveys are
  not proposed for LCRRA and only limited seine surveys are proposed for PSRA.
\2\ We expect that only one Kogia spp. may be taken over the five-year timespan and that it could be either a
  pygmy or dwarf sperm whale.
\3\ Incidental take is expected only from the offshore stock.
\4\ Incidental take for these species may be of animals from any stock in California, Oregon, or Washington, but
  expected vulnerability may be assigned to CCE or Washington inland waters stocks according to the expected
  take proportions shown.
\5\ Incidental take may be of animals from either the eastern Pacific or California stock.

Estimated Take Due to Acoustic Harassment

    As described in our notice of proposed rulemaking (81 FR 38516; 
June 13, 2016; ``Potential Effects of the Specified Activity on Marine 
Mammals''), we believe that NWFSC use of active acoustic sources has, 
at most, the potential to cause Level B harassment of marine mammals. 
In order to attempt to quantify the potential for Level B harassment to 
occur, NMFS (including the NWFSC and acoustics experts from other parts 
of NMFS) developed an analytical framework considering characteristics 
of the active acoustic systems described in our notice of proposed 
rulemaking (81 FR 38516; June 13, 2016) under Description of Active 
Acoustic Sound Sources, their expected patterns of use, and 
characteristics of the marine mammal species that may interact with 
them. We believe that this quantitative assessment benefits from its 
simplicity and consistency with current NMFS acoustic guidance 
regarding Level B harassment but caution that, based on a number of 
deliberately precautionary assumptions, the resulting take estimates 
may be seen as an overestimate of the potential for behavioral 
harassment to occur as a result of the operation of these systems.
    In 2016, NMFS released updated ``Technical Guidance for Assessing 
the Effects of Anthropogenic Sound on Marine Mammal Hearing'' with 
revised metrics and thresholds to assess the potential for injury 
(e.g., permanent threshold shift) from acoustic sources. While the 
NWFSC's EA and our proposed rule refer to NMFS's historic guidelines, 
as the documents were completed prior to the recent release of the 
technical guidance, the conclusions regarding the potential for injury 
remain

[[Page 36385]]

the same. Most importantly, the technical guidance now explicitly takes 
into account the duration of the sound through the use of the sound 
exposure level (SEL) metric, as opposed to the previous use of rms 
sound pressure level (SPL). The effect of this different metric, in 
particular for the very short duration sounds used for these 
echosounders, is to largely reduce the exposure level of sound an 
animal is exposed to for short duration sounds (e.g., for a 1 
millisecond ping, an SPL source level is reduced by 30 dB in the SEL 
metric) offsetting changes in the thresholds themselves. While energy 
is accumulated over time using SEL, the previous conclusion that an 
individual would have to remain exceptionally close to a sound source 
for unrealistic lengths of time holds, suggesting the likelihood of 
injury occurring is exceedingly small and is therefore not considered 
further in this analysis.
    The operating frequencies of active acoustic systems used by NWFSC 
sources only go down to 27-33 kHz for the trawl monitoring system, 
which is not one of the predominant sources, and to 38 kHz for the EK60 
echosounder (see Tables 2 and 8 from our notice of proposed rulemaking 
(81 FR 38516; June 13, 2016)). These frequencies are above the hearing 
range of baleen whales (i.e., mysticetes); therefore, baleen whales 
would not be expected to perceive signals from NWFSC active acoustic 
sources. We would not expect any exposures to these signals to result 
in behavioral harassment. Baleen whales are not considered further in 
this section.
    The assessment paradigm for active acoustic sources used in NWFSC 
fisheries research is relatively straightforward and has a number of 
key simplifying assumptions. NMFS's current acoustic guidance requires 
in most cases that we assume Level B harassment occurs when a marine 
mammal receives an acoustic signal at or above a simple step-function 
threshold. For use of these active acoustic systems, the appropriate 
threshold is 160 dB re 1 [mu]Pa (rms). Estimating the number of 
exposures at the specified received level requires several 
determinations, each of which is described sequentially below:
    (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.
    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 individuals for which sound levels exceed the relevant threshold for 
each area. The number of potential incidents of Level B harassment is 
ultimately estimated as the product of the volume of water ensonified 
at 160 dB rms or higher 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. We described the approach used (including methods 
for estimating each of the calculations described above) and the 
assumptions made that result in conservative estimates in significant 
detail in our notice of proposed rulemaking (81 FR 38516; June 13, 
2016). There have been no changes made to the approach, the 
informational inputs, or the results. Therefore, we do not repeat the 
discussion here and refer the reader to the proposed rule. Summaries of 
the results are provided in Table 4 below. Note that NWFSC only uses 
active acoustic systems for data acquisition purposes in the CCRA, not 
in the LCRRA or PSRA.

                     Table 4--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Estimated Level B       Estimated Level
                                                                     Area density     Volumetric       harassment,  0-200 m      B harassment,
                   Species                     Shallow      Deep       (animals/        density    ---------------------------      >200 m        Total
                                                                      km\2\) \1\       (animals/                              ------------------
                                                                                      km\3\) \2\      EK60     ME70     SX90     EK60     SX90
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale.................................  .........         X            0.002           0.003        1        0        1        3        1        6
Kogia spp...................................  .........         X            0.001           0.002        0        0        1        2        0        3
Cuvier's beaked whale.......................  .........         X            0.004           0.008        2        1        2        7        2       14
Baird's beaked whale........................  .........         X            0.001           0.002        0        0        1        2        0        3
Mesoplodont beaked whales...................  .........         X            0.001           0.002        0        0        1        2        0        3
Bottlenose dolphin..........................         X   .........           0.002           0.009        2        1        3        0        0        6
Striped dolphin.............................         X   .........           0.017           0.083       18        6       25        0        0       49
Long-beaked common dolphin..................         X   .........           0.019           0.096       20        7       28        0        0       55
Short-beaked common dolphin.................         X   .........           0.309           1.547      325      115      455        0        0      895
Pacific white-sided dolphin.................         X   .........           0.021           0.105       22        8       31        0        0       61
Northern right whale dolphin................         X   .........           0.010           0.049       10        4       14        0        0       28
Risso's dolphin.............................         X   .........           0.010           0.052       11        4       15        0        0       30
Killer whale................................         X   .........           0.001           0.004        1        0        1        0        0        2
Short-finned pilot whale....................  .........         X           0.0003           0.001        0        0        0        1        0        1
Harbor porpoise.............................         X   .........       \4\ 0.038           0.189       40       14       56        0        0      110
Dall's porpoise.............................         X   .........           0.076           0.378       79       28      111        0        0      218
Guadalupe fur seal..........................         X   .........       \3\ 0.007           0.037        8        3       11        0        0       22
Northern fur seal...........................         X   .........       \3\ 0.649           3.245      682      241      955        0        0    1,878
California sea lion.........................         X   .........       \3\ 0.297           1.484      312      110      437        0        0      859
Steller sea lion............................         X   .........       \3\ 0.060           0.301       63       22       89        0        0      174
Harbor seal.................................         X   .........       \3\ 0.056           0.279       59       21       82        0        0      162
Northern elephant seal......................  .........         X        \3\ 0.179           0.358       75       27      105      336       79      622
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ All density estimates from Barlow and Forney (2007) unless otherwise indicated.
\2\ Volumetric density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding
  with defined depth strata.
\3\ Density estimates derived by NWFSC from SAR abundance estimates and notional study area of 1,000,000 km\2\.
\4\ ManTech-SRS Technologies (2007) estimated a harbor porpoise density for coastal and inland waters of Washington, which is used as the best available
  proxy here. There are no known density estimates for harbor porpoises in NWFSC survey areas in the CCRA.


[[Page 36386]]

Estimated Take Due to Physical Disturbance

    Estimated take due to physical disturbance could potentially happen 
in the PSRA and LCRRA, and would result in no greater than Level B 
harassment. It is likely that some pinnipeds will move or flush from 
known haulouts into the water in response to the presence or sound of 
NWFSC vessels or researchers, as a result of unintentional approach 
during survey activity. Behavioral responses may be considered 
according to the scale shown in Table 5 and based on the method 
developed by Mortenson (1996). We consider responses corresponding to 
Levels 2-3 to constitute Level B harassment.

                  Table 5--Seal 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 away from
                                                   the source of
                                                   disturbance, ranging
                                                   from short
                                                   withdrawals at least
                                                   twice the animal's
                                                   body length to longer
                                                   retreats over the
                                                   beach.
3..................  Flight.....................  All retreats (flushes)
                                                   to the water.
------------------------------------------------------------------------

    The NWFSC has estimated potential incidents of Level B harassment 
due to physical disturbance (Table 6) by considering the number of 
seals believed to potentially be present at affected haul-outs and the 
number of visits expected to be made by NWFSC researchers. The number 
of haulouts disturbed and number of animals assumed to be on those 
haulouts was determined by NWFSC on the basis of anecdotal evidence 
from researchers. Although not all individuals on ``disturbed'' 
haulouts would necessarily actually be disturbed, and some haulouts may 
experience some disturbance at distances greater than expected, we 
believe that this approach is a reasonable effort towards accounting 
for this potential source of disturbance.

      Table 6--Estimated Annual Level B Harassment of Pinnipeds Associated With Disturbance by Researchers
----------------------------------------------------------------------------------------------------------------
                                                          Estimated total
                                                         number of animals                      Estimated annual
             Species                     Location          on potentially    Number of visits       Level B
                                                          disturbed haul-        per year          harassment
                                                                outs
----------------------------------------------------------------------------------------------------------------
Harbor seal......................  Puget Sound.........              1,440                  8             11,520
                                   Columbia River......              3,000                 25             75,000
California sea lion..............  Puget Sound.........                350                  8              2,800
----------------------------------------------------------------------------------------------------------------

Summary of Estimated Incidental Take

    Here we provide a summary of the total incidental take 
authorization on an annual basis, as well other information relevant to 
the negligible impact analysis. Table 7 shows information relevant to 
our negligible impact analysis concerning the total annual taking that 
could occur for each stock from NMFS's scientific research activities 
when considering incidental take previously authorized for SWFSC (80 FR 
58982; September 30, 2015) and take authorized for NWFSC. As footnoted 
in Table 7, the indicated level of take could occur to any species or 
stock for those species with multiple stocks (e.g., northern fur seal) 
or considered as a group (e.g., Mesoplodont beaked whales). However, 
the harbor porpoise and harbor seal each have multiple stocks spanning 
the three NWFSC research areas, and we provide further detail regarding 
our consideration of potential take specific to stocks that may occur 
in the PSRA and LCRRA. Many stocks do not occur in those research areas 
and, therefore, would not be vulnerable to interaction with research 
gear deployed in those areas.
    For harbor porpoise, we authorize a total of five takes by M/SI for 
all stocks combined over the five-year period of validity for these 
regulations. For the purposes of the negligible impact analysis, we 
assume that all of these takes could potentially be in the form of M/
SI; PBR is not intended for assessment of the significance of 
harassment. These takes could occur to any stock; however, our take 
authorization is informed by reasonable expectation regarding species 
vulnerability to gear used in the three research areas. Of the five 
total takes, we expect that two might occur in the CCRA, one in the 
PSRA, and two in the LCRRA. Therefore, corresponding with the 
relationship between stock ranges and the location of NWFSC research 
activities, the likely maximum takes that could accrue to any harbor 
porpoise stock from California to southern Oregon would be two, while 
the northern Oregon/Washington coast stock could potentially accrue 
four takes because it is vulnerable to the takes expected in either the 
CCRA or LCRRA. In Table 7 below, the total take authorization column 
reflects the total of four takes that could occur in either the CCRA or 
LCRRA (and the one take expected in the PSRA, which would occur to the 
Washington inland waters stock). However, the estimated maximum annual 
take column reflects the annualized stock-specific risk, i.e., any 
stock in the CA-southern OR grouping is expected to be vulnerable to a 
maximum of two takes over the 5-year period (0.4/year) while the 
northern OR/WA coast stock could be vulnerable to as many as four takes 
over the five years (0.8/year). This stock-specific accounting does not 
change our expectation that a total of five takes would occur for all 
stocks combined but informs our stock-specific negligible impact 
analysis.
    Similarly, the harbor seal has separate designated stocks that may 
occur in all three research areas. We will authorize a total of 
thirteen takes by M/SI for all harbor seal stocks combined, and expect 
that five of these may occur in the CCRA, six in the PSRA, and two in 
the LCRRA. Therefore, while we would expect that a maximum of five 
takes could accrue to the California stock, as many as seven takes 
could occur for the Oregon/Washington coastal stock (which is the only 
stock that may occur in the LCRRA). Although NMFS has split the former 
Washington inland waters stock of harbor seals into three separate 
stocks, we do not have sufficient information to assess stock-specific 
risk in the PSRA. Separately,

[[Page 36387]]

we have estimated that 162 incidents of acoustic harassment may occur 
for harbor seals due to NWFSC use of active acoustic systems (in the 
CCRA only) and that, due to the physical presence of researchers, 
individual harbor seals on haulouts (as many as 3,000) may be disturbed 
up to 25 times per year in the LCRRA. Therefore, as shown in Table 7, 
the California stock of harbor seals is vulnerable to only the 
estimated 162 acoustic harassment takes, but the OR/WA coast stock 
would be vulnerable to both the acoustic harassment takes as well as 
the physical disturbance takes. However, note that the percent of 
estimated population is calculated considering the number of 
individuals anticipated to be disturbed rather than the number of 
incidents of disturbance.
    We previously authorized take of marine mammals incidental to 
fisheries research operations conducted by the SWFSC (see 80 FR 58982 
and 80 FR 68512). This take would occur to some of the same stocks for 
which we will authorize take incidental to NWFSC fisheries research 
operations. Therefore, in order to evaluate the likely impact of the 
take by M/SI to be authorized pursuant to this rule, we consider not 
only other ongoing sources of human-caused mortality but the potential 
mortality authorized for SWFSC. As used in this 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 authorized for NWFSC and previously authorized for 
SWFSC 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 (as described in footnote 4 
of Table 7 and in the following discussion). PBR and annual M/SI values 
considered in Table 7 reflect the most recent information available.

                                    Table 7--Summary Information Related to NWFSC Annual Take Authorization, 2018-23
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Total annual
                                        Level B       Percent of    Proposed total  SWFSC total  M/    Estimated
            Species \1\               harassment       estimated       M/SI \3\           SI            maximum       PBR minus annual M/SI      Stock
                                     authorization    population    authorization,  authorization,    annual M/SI            (%) \5\           trend \6\
                                          \2\          abundance        2018-23         2015-20           \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale.......................               6             0.3               0               0               0  n/a.....................          ?
Kogia spp.........................               3             0.1               1               1             0.4  19.2 (2.1)..............          ?
Cuvier's beaked whale.............              14             0.4               0               0               0  n/a.....................     [darr]
Baird's beaked whale..............               3             0.1               0               0               0  n/a.....................          ?
Mesoplodont beaked whales.........               3             0.1               0               0               0  n/a.....................     [darr]
Bottlenose dolphin (offshore                     6             0.3               2               9             2.6  9.4 (27.7)..............          ?
 stock).
Striped dolphin...................              49             0.2               7              12             4.2  237.2 (1.8).............          ?
Long-beaked common dolphin........              55             0.1               2              12             3.2  621.6 (0.5).............     [uarr]
Short-beaked common dolphin.......             895             0.1               3              12             3.4  8,353 (<0.1)............          ?
Pacific white-sided dolphin.......              61             0.2              31              35            13.6  189.1 (7.2).............          ?
Northern right whale dolphin......              28             0.1               7              10             3.8  175.2 (2.2).............          ?
Risso's dolphin...................              30             0.5               8              12             4.4  42.3 (10.4).............          ?
Killer whale \7\..................               2             0.8               0               0               0  n/a.....................          ?
Short-finned pilot whale..........               1             0.1               1               1             0.4  3.3 (12.1)..............          ?
Harbor porpoise (CA-southern OR                110             3.8               4               5             1.8  20.4 (8.8)..............          ?
 stocks) \7\.
Harbor porpoise (Northern OR/WA     ..............  ..............  ..............  ..............             2.2  148 (1.5)...............          ?
 coast).
Harbor porpoise (WA inland waters)               0             n/a               1               0             0.2  58.8 (0.3)..............          ?
Dall's porpoise...................             218             0.9               3               5               2  171.7 (1.2).............          ?
Guadalupe fur seal................              22             0.1               0               0               0  n/a.....................     [uarr]
Northern fur seal \6\.............       \8\ 1,878             0.3               5               5             2.4  449.4 (0.5).............     [uarr]
California sea lion...............           3,659             0.4              10              25             7.6  8,815 (0.1).............     [uarr]
Steller sea lion..................             174             0.4               9              10             4.4  2,390.6 (0.2)...........     [uarr]
Harbor seal (CA)..................          75,162             0.6               5               9             3.2  1,598.2 (0.2)...........     [rarr]
Harbor seal (OR/WA coast).........  ..............            12.8               2  ..............             1.8  Unknown.................     [rarr]
Harbor seal (WA inland waters)....          11,520            10.5               6               0             1.2  Unknown.................     [rarr]
Northern elephant seal............             622             0.3               5               5             2.2  4,873.2 (0.1)...........     [uarr]
Unidentified small cetacean.......             n/a             n/a               1               1             n/a  n/a.....................        n/a
Unidentified pinniped.............             n/a             n/a               1               2             n/a  n/a.....................        n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Please see our notice of proposed rulemaking (81 FR 38516; June 13, 2016) for full details.
\1\ For species with multiple stocks or for species groups (Kogia spp. and Mesoplodont beaked whales), indicated level of take could occur to
  individuals from any stock or species except as indicated in table.
\2\ Level B harassment totals include estimated take due to acoustic harassment and, for harbor seals and California sea lions, estimated take due to
  physical disturbance. Active acoustic devices are not used for data acquisition in the PSRA; therefore, no takes by acoustic harassment are expected
  for stocks that occur entirely or largely in inland waters (e.g., resident killer whales). Takes by physical disturbance for pinniped species
  represent repeated takes of smaller numbers of individuals (e.g., we expect as many as 1,440 harbor seals in the PSRA to be harassed on as many as
  eight occasions). The ``percent of estimated population'' column represents this smaller number of individuals taken rather than the total number of
  take incidents.
\3\ As 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 result in mortality).

[[Page 36388]]

 
\4\ This 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 or cetacean that may be captured in trawl gear in the CCRA. This represents the potential that
  the take of an unidentified pinniped or small cetacean could accrue to any given stock captured in that gear in that area. The take authorization 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.
\5\ This 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). For the Pacific-white sided dolphin, harbor seal (California stock), northern fur seal (California stock),
  Steller sea lion, and California sea lion, we subtract the annual average of mortalities occurring incidental to fisheries research from the total
  human-caused M/SI prior to calculating this value, as we explicitly account for predicted future mortalities incidental to fisheries research via the
  estimated maximum annual M/SI column. In parentheses, we provide the estimated maximum annual M/SI expressed as a percentage of this value.
\6\ See relevant SARs for more information regarding stock status and trends. Interannual increases may not be interpreted as evidence of a trend. Based
  on the most recent abundance estimates, harbor seal stocks may have reached carrying capacity and appear stable. A time series of stock-specific
  abundance estimates for harbor porpoise shows either increasing or stable estimates, but it is not statistically valid to infer a trend.
\7\ These species have multiple stocks that may be affected. Values for ``percent of estimated population'' and ``PBR--annual M/SI'' (where relevant)
  calculated for the stock with the lowest population abundance and/or PBR (as appropriate). This approach assumes that all indicated takes would accrue
  to the stock in question, which is a very conservative assumption. Stocks in question are the offshore killer whale, Morro Bay harbor porpoise, and
  California northern fur seal.
\8\ Calculated on the basis of relative abundance; i.e., of 1,878 total estimated incidents of Level B harassment, we would expect on the basis of
  relative abundance in the study area that 98 percent would accrue to the Pribilof Islands/Eastern Pacific stock and two percent would accrue to the
  California stock.

Negligible Impact Analysis and Determination

    We received no public comments or new information indicating any 
deficiencies in our preliminary determinations, as provided in our 
notice of proposed rulemaking (81 FR 38516; June 13, 2016).
    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., population-level 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 
environmental baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused 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 worse 
potential outcome (mortality) is analyzed for the purposes of the 
negligible impact determination. We discuss here the connection between 
the mechanisms for authorizing incidental take under section 101(a)(5) 
for activities, such as NWFSC'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, Potential Biological Removal (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 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, and is a measure to be 
considered when evaluating the effects of M/SI on a marine mammal 
species or stock. Optimum sustainable population (OSP) is defined by 
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. A primary goal of 
the MMPA 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 (N<INF>min</INF>); 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 N<INF>min</INF> incorporates the precision and 
variability associated with abundance information and is intended to 
provide 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).
    PBR can be used as a consideration of the effects of M/SI on a 
marine mammal stock but was applied specifically to work within the 
management framework for commercial fishing incidental take. PBR cannot 
be applied appropriately outside of the section 118 regulatory 
framework for which it was

[[Page 36389]]

designed without consideration of how it applies in section 118 and how 
other statutory management frameworks in the MMPA differ. PBR was not 
designed as an absolute threshold limiting commercial fisheries, but 
rather 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, 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. PBR is not used to grant or deny authorization of commercial 
fisheries that may incidentally take marine mammals.
    Similarly, to the extent consideration of PBR may be relevant to 
considering the impacts of incidental take from activities other than 
commercial fisheries, using it as the sole reason to deny incidental 
take authorization for those activities would be inconsistent with 
Congress's intent under section 101(a)(5) and the use of PBR under 
section 118. The standard for authorizing incidental take under section 
101(a)(5) continues to be, among other things, whether the total taking 
will have a negligible impact on the species or stock. 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), acknowledging that negligible 
impact under section 101(a)(5) is a separate standard from PBR 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 kept the requirement for a 
negligible impact finding, showing that the determination of negligible 
impact and application of PBR may share certain features but are 
different.
    Since the introduction of PBR, NMFS has used the concept almost 
entirely within the context of implementing sections 117 and 118 and 
other commercial fisheries management-related provisions of the MMPA. 
The MMPA requires that PBR be estimated in stock assessment reports 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'' (16 U.S.C. 1362(19))), but nothing in 
the MMPA 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 in certain instances 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 caused by activities authorized under 101(a)(5)(A) on marine 
mammal stocks. As noted by NMFS and the USFWS 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. To 
specifically use PBR, along with other factors, to evaluate the effects 
of M/SI, 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), which is called ``residual PBR'' (Wood et 
al., 2012). We then consider how the anticipated potential incidental 
M/SI from the activities being evaluated compares to residual PBR. 
Anticipated or potential M/SI that exceeds residual PBR is considered 
to have a higher likelihood of adversely affecting rates of recruitment 
or survival, while anticipated M/SI that is equal to or less than 
residual PBR has a lower likelihood (both examples given without 
consideration of other types of take, which also factor into a 
negligible impact determination). In such cases where the anticipated 
M/SI is near, at, or above residual PBR, consideration of other 
factors, including those outlined above as well as mitigation and other 
factors (positive or negative), is especially important to assessing 
whether the M/SI will have a negligible impact on the stock. As 
described above, PBR is a conservative metric and is not intended to be 
used as a solid cap on mortality--accordingly, impacts from M/SI that 
exceed residual 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.
    Alternately, for a species or stock with incidental M/SI less than 
10 percent of residual PBR, we consider M/SI from the specified 
activities to represent an insignificant incremental increase in 
ongoing anthropogenic M/SI that alone (i.e., in the absence of any 
other take) cannot affect annual rates of recruitment and survival. In 
a prior incidental take rulemaking and in the commercial fishing 
context, this threshold is identified as the significance threshold, 
but it is more accurately an insignificance threshold outside 
commercial fishing because it represents the level at which there is no 
need to consider other factors in determining the role of M/SI in 
affecting rates of recruitment and survival. Assuming that any 
additional incidental take by harassment would not 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. 
This 10 percent was identified as a workload simplification 
consideration to avoid the need to provide unnecessary additional 
information when the conclusion is relatively obvious, but as described 
above, values above 10 percent have no particular significance 
associated with them until and unless they approach residual PBR.
    Our evaluation of the M/SI for each of the species and stocks for 
which mortality 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 rulemaking for the NMFS Southwest Fisheries 
Science Center has been incorporated into the residual PBR.
    We first consider maximum potential incidental M/SI for each stock 
(Table 7) 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 NWFSC research activities may affect the species' or 
stock's annual rates of recruitment or survival. We also consider the 
interaction of those

[[Page 36390]]

mortalities with incidental taking of that species or stock by 
harassment pursuant to the specified activity.
    Analysis--Please see Table 7 for information related to this 
analysis. The large majority of stocks that may potentially be taken by 
M/SI (18 of 21) fall below the insignificance threshold, while an 
additional four stocks do not have current PBR values and therefore are 
evaluated using other factors. We first consider stocks expected to be 
affected only by behavioral harassment and those stocks that fall below 
the insignificance threshold. Next, we consider those stocks above the 
insignificance threshold (i.e., the offshore stock of bottlenose 
dolphin, Risso's dolphin, and short-finned pilot whale) and those 
without PBR values (harbor seals along the Oregon and Washington coasts 
and in Washington inland waters).
    As described in greater depth in our notice of proposed rulemaking 
(81 FR 38516; June 13, 2016), we do not believe that NWFSC use of 
active acoustic sources has the likely potential to cause any effect 
exceeding Level B harassment of marine mammals. In addition, for the 
majority of species, the annual take by Level B harassment is very low 
in relation to the population abundance estimate (less than one 
percent). We have produced what we believe to be precautionary 
estimates of potential incidents of Level B harassment. The procedure 
for producing these estimates, described in detail in our notice of 
proposed rulemaking (81 FR 38516; June 13, 2016), represents NMFS's 
best effort towards balancing the need to quantify the potential for 
occurrence of Level B harassment due to production of underwater sound 
with 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 and to a meaningful 
understanding of marine mammal perception of these signals and 
occurrence in the areas where NWFSC operates. The sources considered 
here have moderate to high output frequencies (10 to 180 kHz), 
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 proposed take 
authorization.
    In addition, otariid pinnipeds are less likely than other taxa to 
perceive acoustic signals generated by NWFSC or, given perception, to 
react to these signals than the quantitative estimates indicate. This 
group of pinnipeds has reduced functional hearing at the higher 
frequencies produced by active acoustic sources considered here (e.g., 
primary operating frequencies of 40-180 kHz) and, based purely on their 
auditory capabilities, the potential impacts are likely much less than 
we have calculated as these relevant factors are not taken into 
account.
    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), 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 NWFSC 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 proposed level 
of take by M/SI for any species.
    Similarly, disturbance of pinnipeds on haulouts by researchers 
approaching on foot or in small vessels (as is expected for harbor 
seals in the lower Columbia River and Puget Sound and for California 
sea lions in Puget Sound) are expected to be infrequent and cause only 
a temporary disturbance on the order of minutes. As noted previously, 
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 (less than fifteen percent) of the estimated population 
abundance of the affected stocks would be expected to experience the 
disturbance.
    As noted above, authorized M/SI above the insignificance threshold 
does not necessarily indicate that the take is unsustainable or that it 
may constitute more than a negligible impact. Rather, we simply use 
this metric as a guide to indicate when further evaluation of the 
available information is warranted. For the offshore stock of 
bottlenose dolphin, Risso's dolphin, and short-finned pilot whale, 
maximum total potential M/SI due to NMFS's fisheries research activity 
(SWFSC and NWFSC combined), while above the insignificance threshold, 
is low relative to residual PBR (approximately 28, 10, and 12 percent, 
respectively).
    The only known source of other anthropogenic mortality for the 
offshore stock of bottlenose dolphin and the Risso's dolphin is in 
commercial fisheries, and such take is considered to be insignificant 
and approaching zero mortality and serious injury. Therefore, there is 
no information to suggest that the incremental additional removals due 
to NWFSC fisheries research cause any concern with regard to annual 
rates of recruitment or survival for these stocks.
    Similarly, commercial fisheries provide the only known cause of 
anthropogenic mortality for the short-finned pilot whale. However, due 
to the relatively low PBR value for this stock, such take cannot be 
considered to be insignificant and approaching zero mortality and 
serious injury. The only takes in commercial fisheries from 2010-14 
were due to interactions with the California drift gillnet fishery, and 
occurred only in 2014. Therefore, it is unclear that these fishery 
takes will constitute an ongoing source of mortality and, regardless, 
any level of removals up to PBR could occur while still allowing the 
stock to reach or maintain its optimum sustainable population, as 
indicated in the definition of the PBR metric. The available 
information, i.e., that there is only one other source of anthropogenic 
mortality, which has resulted in a low level of mortalities in one year 
and may not be an ongoing source of mortality, and that the authorized 
take is low compared to residual PBR (10 percent), indicates that there 
is no concern regarding the impacts of incremental additional removals 
due to NWFSC fisheries research on annual rates of recruitment or 
survival for this stock. Nevertheless, if bycatch in commercial 
fisheries increases, or other sources of

[[Page 36391]]

mortality are recorded for this stock, we will use the adaptive 
management provisions of these regulations to prescribe increased 
mitigation sufficient to reduce the likelihood of incidental take in 
NMFS fisheries research activities. No population trends are known for 
these three stocks.
    PBR is unknown for harbor seals on the Oregon and Washington coasts 
and in Washington inland waters (comprised of the Hood Canal, southern 
Puget Sound, and Washington northern inland waters stocks). The Hood 
Canal, southern Puget Sound, and Washington northern inland waters 
stocks were formerly a single inland waters stock. Both the Oregon/
Washington coast and Washington inland waters stocks of harbor seal 
were considered to be stable following the most recent abundance 
estimates (in 1999, stock abundances were estimated at 24,732 and 
13,692, respectively). 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 for the coastal stock and 13.4 for inland 
waters seals; therefore, we reasonably assume that the maximum 
potential annual M/SI incidental to NMFS's fisheries research 
activities (1.8 and 1.2, respectively) is a small fraction of any 
sustainable take level that might be calculated for either stock. For 
the reasons stated above, we do not consider the level of take by 
acoustic and physical disturbance for harbor seals to represent a 
significant additional population stressor when considered in context 
with the proposed level of take by M/SI.
    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 planned mitigation measures, we 
find that the total marine mammal take from NWFSC's fisheries research 
activities will have a negligible impact on the affected marine mammal 
species or stocks. In summary, this finding of negligible impact 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 
(i.e., below ten percent of residual PBR) for a majority of affected 
stocks; (4) consideration of additional factors for the Risso's 
dolphin, offshore stock of bottlenose dolphin, and short-finned pilot 
whale do not reveal cause for concern; (5) available information 
regarding two harbor seal stocks indicates that total maximum potential 
M/SI is sustainable; and (6) 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 addition, no M/SI 
is authorized for any species or stock that is listed under the ESA or 
considered depleted under the MMPA. 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.

Small Numbers Analysis

    Please see Table 7 for information relating to this small numbers 
analysis. The total amount of taking authorized is less than one 
percent for a large majority of stocks. The total amount of taking for 
remaining stocks ranges from four to thirteen percent.
    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 proposed mitigation measures, 
we find that small numbers of marine mammals will be taken relative to 
the populations of the affected species or stocks.

Monitoring and Reporting

    In order to issue an incidental take authorization 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 such taking. 
The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate 
that requests for incidental take authorizations must include the 
suggested means of accomplishing the necessary monitoring and reporting 
that will result in increased knowledge of the species and of the level 
of taking or impacts on populations of marine mammals that are expected 
to be present in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
    <bullet> Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density);
    <bullet> 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);
    <bullet> Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological);
    <bullet> How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) population, 
species, or stock;
    <bullet> Effects on marine mammal habitat and resultant impacts to 
marine mammals; and
    <bullet> Mitigation and monitoring effectiveness.
    NWFSC plans to make more systematic its training, operations, data 
collection, animal handling and sampling protocols, etc., 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 the monitoring requirements described below 
were crafted.

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 NWFSC personnel with no other responsibilities 
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

[[Page 36392]]

vessel and other crew; these will typically not be NWFSC 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.
    In the PSRA and LCRRA only, the NWFSC will monitor any potential 
disturbance of hauled-out pinnipeds, paying particular attention to the 
distance at which different species of pinniped are disturbed. 
Disturbance will be recorded according to the three-point scale, 
representing increasing seal response to disturbance, shown in Table 5.

Training

    NWFSC anticipates that additional information on practices to avoid 
marine mammal interactions can be gleaned from training sessions and 
more systematic data collection standards. The NWFSC will conduct 
annual trainings for all CSs 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, 
recording of count and disturbance observations, completion of 
datasheets, and use of equipment. Some of these topics may be familiar 
to NWFSC staff, who may be professional biologists. The NWFSC shall 
determine the agenda for these trainings and ensure that all relevant 
staff have necessary familiarity with these topics. The first such 
training will include three primary elements:
    First, the course will provide an overview of the purpose and need 
for the authorization, including mandatory mitigation measures by gear 
and the purpose for each, and species that NWFSC is authorized to 
incidentally take.
    Second, the training will provide detailed descriptions of 
reporting, data collection, and sampling protocols. This portion of the 
training will include instruction on how to complete new 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 biological data collection 
and sampling training module will include the same sampling and 
necropsy training that is used for the West Coast Regional Observer 
training.
    Third, NWFSC will also dedicate a portion of training to discussion 
of best professional judgment (which is recognized as an integral 
component of mitigation implementation; see ``Mitigation''), 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. 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 NWFSC 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 NWFSC to facilitate such exchange.

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, NWFSC believes adopting these protocols for data 
collection will also increase the information on which ``serious 
injury'' (SI) determinations (NMFS, 2012a, b) are based and improve 
scientific knowledge about marine mammals that interact with fisheries 
research gears and the factors that contribute to these interactions. 
NWFSC personnel will be 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.
    NWFSC will record interaction information on either existing data 
forms created by other NMFS programs or will develop their own 
standardized forms. To aid in SI determinations and comply with the 
current NMFS Serious Injury Guidelines (NMFS, 2012a, b), 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 pursuant 
to Appendix D of the NWFSC DEA, ``Protected Species Handling Procedures 
for NWFSC Fisheries Research Vessels.''

Reporting

    As is normally the case, NWFSC 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. The NWFSC will follow a 
phased approach with regard to the cessation of its activities and/or 
reporting of such events, as described in the proposed regulatory texts 
following this preamble. In addition, CSs or the cruise leader will 
provide reports to NWFSC 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 NWFSC 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 NWFSC will submit annual summary reports to OPR including: (1) 
Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or 
equivalent sources) were predominant (see ``Estimated Take by Acoustic 
Harassment'' for further discussion), specific to each region; (2) 
summary information regarding use of all hook and line, seine, and 
trawl gear, including number of sets, hook hours, 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) summary information related to any disturbance 
of pinnipeds, including event-specific

[[Page 36393]]

total counts of animals present, counts of reactions according to the 
three-point scale shown in Table 5, and distance of closest approach; 
and (5) a written evaluation of the effectiveness of NWFSC 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, beginning one year post-issuance of any LOA, 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 
represent not only 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.
    NWFSC will also collect and report all necessary data, to the 
extent practicable given the primacy of human safety and the well-being 
of captured or entangled marine mammals, to facilitate SI 
determinations for marine mammals that are released alive. NWFSC will 
require that the CS complete data forms and address supplemental 
questions, both of which have been developed to aid in SI 
determinations. NWFSC 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 NWFSC 
will perform all necessary reporting to ensure that any incidental M/SI 
is incorporated as appropriate into relevant SARs.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
NWFSC 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 final 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 
NWFSC 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 
NWFSC 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.

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.

Endangered Species Act (ESA)

    There are multiple marine mammal species listed under the ESA with 
confirmed or possible occurrence in the proposed specified geographical 
region. The authorization of incidental take pursuant to the NWFSC's 
specified activity would not affect any designated critical habitat. 
OPR requested initiation of consultation with NMFS's 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 NWFSC 
under section 101(a)(5)(A) of the MMPA.
    On November 10, 2016, the WCRO issued a biological opinion to OPR 
and to the NWFSC (concerning the conduct of the specified activities) 
which concluded that the issuance of the authorizations is not likely 
to jeopardize the continued existence of any listed species and is not 
likely to adversely affect any listed marine mammal species. The 
opinion also concluded that the issuance of the authorizations would 
not affect any designated critical habitat.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), NWFSC 
prepared a Programmatic EA to consider the direct, indirect and 
cumulative effects to the human environment resulting from the 
described research activities. OPR made NWFSC's EA available to the 
public for review and comment, in relation to its suitability for 
adoption by OPR in order to assess the impacts to the human environment 
of issuance of regulations and subsequent LOA to NWFSC. Also in 
compliance with NEPA and the CEQ regulations, as well as NOAA 
Administrative Order 216-6, OPR relies on NWFSC's EA, which also 
addresses OPR's action of issuing incidental take authorizations to 
NWFSC, and signed a Finding of No Significant Impact (FONSI) on March 
27, 2018. NWFSC's EA and OPR's FONSI for this action may be found 
online at www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
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 rule will not have 
a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. 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 (COI) subject

[[Page 36394]]

to the requirements of the Paperwork Reduction Act (PRA) unless that 
COI displays a currently valid OMB control number. This rule does not 
contain a COI requirement subject to the provisions of the PRA because 
the applicant is a Federal agency.

List of Subjects in 50 CFR Part 219

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.


    Dated: July 24, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, NMFS amends 50 CFR part 219 
as follows:

PART 219--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 219 continues to read as follows:

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


0
2. Add subpart E to part 219 to read as follows:

Subpart E--Taking Marine Mammals Incidental to Northwest Fisheries 
Science Center Fisheries Research in the Pacific Ocean
Sec.
219.41 Specified activity and specified geographical region.
219.42 Effective dates.
219.43 Permissible methods of taking.
219.44 Prohibitions.
219.45 Mitigation requirements.
219.46 Requirements for monitoring and reporting.
219.47 Letters of Authorization.
219.48 Renewals and modifications of Letters of Authorization.
219.49 [Reserved]
219.50 [Reserved]

Subpart E--Taking Marine Mammals Incidental to Northwest Fisheries 
Science Center Fisheries Research in the Pacific Ocean


Sec.  219.41  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Northwest Fisheries Science Center (NWFSC) 
and those persons it authorizes or funds to conduct activities on its 
behalf for the taking of marine mammals that occurs in the area 
outlined in paragraph (b) of this section and that occurs incidental to 
research survey program operations.
    (b) The taking of marine mammals by NWFSC may be authorized in a 
Letter of Authorization (LOA) only if it occurs within the California 
Current Ecosystem, including Puget Sound and the Columbia River.


Sec.  219.42  Effective dates.

    Regulations in this subpart are effective from August 27, 2018, 
through August 28, 2023.


Sec.  219.43  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  219.47, the Holder of the LOA (hereinafter ``NWFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  219.41(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 hook and line gear, trawl gear, and 
seine gear, provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
applicable LOA.


Sec.  219.44  Prohibitions.

    Notwithstanding takings contemplated in Sec.  219.41 and authorized 
by a LOA issued under Sec.  216.106 of this chapter and Sec.  219.47, 
no person in connection with the activities described in Sec.  219.41 
may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.  216.106 of 
this chapter and Sec.  219.47;
    (b) Take any marine mammal not specified in such LOA;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) 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
    (e) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the 
availability of such species or stock of marine mammal for taking for 
subsistence uses.


Sec.  219.45  Mitigation requirements.

    When conducting the activities identified in Sec.  219.41(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  219.47 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions:
    (1) NWFSC shall 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 event-contingent decision-making processes, 
are clearly understood and agreed upon;
    (2) NWFSC shall 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) NWFSC shall 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, NWFSC shall 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; and
    (5) NWFSC shall implement handling and/or disentanglement protocols 
as specified in the guidance that shall be provided to NWFSC survey 
personnel.
    (b) For all research surveys using trawl, hook and line, or seine 
gear in Puget Sound, the move-on rule mitigation protocol described in 
paragraph (c)(3) of this section shall be implemented upon observation 
of killer whales at any distance.
    (c) Trawl survey protocols:
    (1) NWFSC shall conduct trawl operations as soon as is practicable 
upon arrival at the sampling station;
    (2) NWFSC shall initiate marine mammal watches (visual observation) 
a minimum of ten minutes prior to beginning of net deployment but shall 
also conduct monitoring during pre-set activities including trackline 
reconnaissance, CTD casts, and plankton or bongo net hauls. Marine 
mammal watches shall be conducted by scanning the surrounding waters 
with the naked eye and rangefinding binoculars (or monocular). During 
nighttime operations, visual observation shall be conducted using the 
naked eye and available vessel lighting;
    (3) NWFSC shall implement the move-on rule mitigation protocol, as

[[Page 36395]]

described in this paragraph. If one or more marine mammals are observed 
within 500 meters (m) of the planned location in the 10 minutes before 
setting the trawl gear, and are considered at risk of interacting with 
the vessel or research gear, or appear to be approaching the vessel and 
are considered at risk of interaction, NWFSC shall either remain onsite 
or move on to another sampling location. If remaining onsite, the set 
shall be delayed. If the animals depart or appear to no longer be at 
risk of interacting with the vessel or gear, a further 10 minute 
observation period shall 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 section 
of the sampling area, the move-on rule mitigation protocol would begin 
anew. If, after moving on, marine mammals remain at risk of 
interaction, the NWFSC shall move again or skip the station. Marine 
mammals that are sighted further than 500 m from the vessel shall 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. NWFSC may use best professional judgment in making 
these decisions;
    (4) NWFSC shall 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, NWFSC shall take the 
most appropriate action to avoid marine mammal interaction. NWFSC may 
use best professional judgment in making this decision;
    (5) If trawling operations have been suspended because of the 
presence of marine mammals, NWFSC may resume trawl operations when 
practicable only when the animals are believed to have departed the 
area. NWFSC may use best professional judgment in making this 
determination;
    (6) When conducting surface trawls using the Nordic 264 net, 
dedicated crew with no other tasks shall conduct required marine mammal 
monitoring. Marine mammal monitoring shall be staffed in a stepwise 
process, with a minimum of two observers beginning pre-set monitoring 
and increasing to a minimum of four observers prior to and during gear 
deployment. During the tow, a minimum of three observers shall conduct 
required monitoring;
    (7) NWFSC shall 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;
    (8) NWFSC must install and use a marine mammal excluder device at 
all times when the Nordic 264 trawl net is used;
    (9) NWFSC must install and use acoustic deterrent devices whenever 
the Nordic 264 trawl net is used, with two pairs of the devices 
installed near the net opening. NWFSC must ensure that the devices are 
operating properly before deploying the net;
    (10) For use of the Kodiak surface trawl in Puget Sound, trawl 
survey protocols described in this section apply only to cetaceans; and
    (11) Trawl survey protocols described in this section do not apply 
to use of pair trawl gear in the Columbia River.
    (d) Hook and line (including longline) survey protocols:
    (1) NWFSC shall deploy hook and line gear as soon as is practicable 
upon arrival at the sampling station;
    (2) NWFSC shall initiate marine mammal watches (visual observation) 
no less than 30 minutes prior to both deployment and retrieval of 
longline gear. Marine mammal watches shall be conducted by scanning the 
surrounding waters with the naked eye and range-finding binoculars (or 
monocular). During nighttime operations, visual observation shall be 
conducted using the naked eye and available vessel lighting;
    (3) NWFSC shall implement the move-on rule mitigation protocol, as 
described in this paragraph. If one or more marine mammals are observed 
within 500 m of the planned location in the ten minutes before gear 
deployment, and are considered at risk of interacting with the vessel 
or research gear, or appear to be approaching the vessel and are 
considered at risk of interaction, NWFSC shall either remain onsite or 
move on to another sampling location. If remaining onsite, the set 
shall be delayed. If the animals depart or appear to no longer be at 
risk of interacting with the vessel or gear, a further 10 minute 
observation period shall 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 section 
of the sampling area, the move-on rule mitigation protocol would begin 
anew. If, after moving on, marine mammals remain at risk of 
interaction, the NWFSC shall move again or skip the station. Marine 
mammals that are sighted further than 500 m from the vessel shall 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. NWFSC may use best professional judgment in making 
these decisions;
    (4) NWFSC shall 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, NWFSC shall take the 
most appropriate action to avoid marine mammal interaction. NWFSC 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, NWFSC may resume such 
operations when practicable only when the animals are believed to have 
departed the area. NWFSC may use best professional judgment in making 
this decision;
    (6) NWFSC shall implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming; and
    (7) For hook and line surveys in Puget Sound, but not including 
longline surveys, hook and line survey protocols described in this 
section apply only to cetaceans.
    (e) Seine survey protocols:
    (1) NWFSC shall conduct seine operations as soon as is practicable 
upon arrival at the sampling station;
    (2) NWFSC shall conduct marine mammal watches (visual observation) 
prior to beginning of net deployment. Marine mammal watches shall be 
conducted by scanning the surrounding waters with the naked eye and 
rangefinding binoculars (or monocular);
    (3) NWFSC shall implement the move-on rule mitigation protocol, as 
described in this paragraph for use of purse seine gear. If one or more 
small cetaceans (i.e., dolphin or porpoise) or five or more pinnipeds 
are observed within 500 m of the planned location before setting the 
seine gear, and are considered at risk of interacting with the vessel 
or research gear, or appear to be approaching the vessel and are 
considered at risk of interaction, NWFSC shall either remain onsite or 
move on to another sampling location. If remaining onsite, the set 
shall be delayed. If the animals depart or appear to no longer be at 
risk of interacting with the vessel or gear, a further ten minute 
observation period shall 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

[[Page 36396]]

a different area, the move-on rule mitigation protocol would begin 
anew. If, after moving on, marine mammals remain at risk of 
interaction, the NWFSC shall move again or skip the station. Marine 
mammals that are sighted further than 500 m from the vessel shall 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. NWFSC may use best professional judgment in making 
these decisions;
    (4) NWFSC shall maintain visual monitoring effort during the entire 
period of time that 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, NWFSC shall take the 
most appropriate action to avoid marine mammal interaction. NWFSC may 
use best professional judgment in making this decision;
    (5) If seine operations have been suspended because of the presence 
of marine mammals, NWFSC may resume seine operations when practicable 
only when the animals are believed to have departed the area. NWFSC may 
use best professional judgment in making this determination;
    (6) If any cetaceans are observed in a purse seine net, NWFSC shall 
immediately open the net and free the animals; and
    (7) NWFSC shall not make beach seine sets within 200 m of any 
hauled-out pinniped, and shall immediately remove the gear from the 
water upon observation of any marine mammal attempting to interact with 
the gear.


Sec.  219.46  Requirements for monitoring and reporting.

    (a) NWFSC shall designate a compliance coordinator who shall be 
responsible for ensuring compliance with all requirements of any LOA 
issued pursuant to Sec.  216.106 of this chapter and Sec.  219.47 and 
for preparing for any subsequent request(s) for incidental take 
authorization.
    (b) Visual monitoring program:
    (1) Marine mammal visual monitoring shall occur prior to deployment 
of trawl, seine, and hook and line 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 shall be conducted by watch-standers 
(those navigating the vessel and/or other crew) at all times when the 
vessel is being operated; and
    (3) NWFSC shall conduct census counts of established pinniped 
haulouts in the Columbia River and Puget Sound that are disturbed by 
NWFSC research activity, and shall record disturbance of hauled-out 
pinnipeds due to NWFSC research activity, paying particular attention 
to the distance at which different species of pinniped are disturbed. 
Disturbance shall be recorded according to a three-point scale of 
response severity.
    (c) Training:
    (1) NWFSC 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. NWFSC may determine the agenda for these trainings;
    (2) NWFSC shall 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; 
and
    (3) NWFSC shall coordinate with NMFS's Southwest Fisheries Science 
Center (SWFSC) regarding surveys conducted in the California Current 
Ecosystem, such that training and guidance related to handling 
procedures and data collection is consistent.
    (d) Handling procedures and data collection:
    (1) NWFSC must develop and 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, NWFSC shall collect necessary data to 
facilitate a serious injury determination;
    (3) NWFSC shall 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; 
and
    (4) NWFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. NWFSC shall also answer a standard 
series of supplemental questions regarding the details of any marine 
mammal interaction.
    (e) Reporting:
    (1) NWFSC shall report all incidents of marine mammal interaction 
to NMFS's Protected Species Incidental Take database within 48 hours of 
occurrence and shall 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) Annual reporting:
    (i) NWFSC shall submit an annual summary report to OPR not later 
than 90 days following the end of a given year. NWFSC shall provide a 
final report within thirty days following resolution of comments on the 
draft report:
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
SX90 (or equivalent sources) were predominant and associated pro-rated 
estimates of actual take;
    (B) Summary information regarding use of all hook and line, seine, 
and trawl gear, including number of sets, hook hours, tows, etc., 
specific to each gear;
    (C) 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;
    (D) Summary information related to disturbance of hauled-out 
pinnipeds, including event-specific total counts of animals present, 
counts of reactions according to the three-point scale, and distance of 
closest approach;
    (E) A written evaluation of the effectiveness of NWFSC 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 NWFSC and any 
coordination with SWFSC or NMFS's West Coast Regional Office.
    (f) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in Sec.  
219.41(a) clearly causes the take of a marine mammal in a prohibited 
manner, NWFSC personnel

[[Page 36397]]

engaged in the research activity shall immediately cease such activity 
until such time as an appropriate decision regarding activity 
continuation can be made by the NWFSC Director (or designee). The 
incident must be reported immediately to OPR and the West Coast 
Regional Stranding Coordinator, NMFS. OPR will review the circumstances 
of the prohibited take and work with NWFSC to determine what measures 
are necessary to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. The immediate decision made by NWFSC regarding 
continuation of the specified activity is subject to OPR concurrence. 
The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s);
    (2) In the event that NWFSC discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), NWFSC shall immediately report the incident to OPR 
and the West Coast Regional Stranding Coordinator, NMFS. The report 
must include the information identified in paragraph (f)(1) of this 
section. Activities may continue while OPR reviews the circumstances of 
the incident. OPR will work with NWFSC to determine whether additional 
mitigation measures or modifications to the activities are appropriate;
    (3) In the event that NWFSC discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with 
or related to the activities defined in Sec.  219.41(a) (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), NWFSC shall report the incident to 
OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 
hours of the discovery. NWFSC shall provide photographs or video 
footage or other documentation of the stranded animal sighting to OPR.


Sec.  219.47  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, NWFSC must apply for and obtain a Letter of Authorization 
(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, NWFSC 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, NWFSC must apply 
for and obtain a modification of the LOA as described in Sec.  219.48 
of this chapter.
    (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.


Sec.  219.48  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
219.47 for the activity identified in Sec.  219.41(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 measures (excluding changes made pursuant to 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 Sec.  216.106 of this chapter and Sec.  
219.47 for the activity identified in Sec.  219.41(a) may be modified 
by OPR under the following circumstances:
    (1) Adaptive Management--OPR may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with NWFSC 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 NWFSC's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, 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) Emergencies--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 Sec.  216.106 of 
this chapter and Sec.  219.47, 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.


Sec.  219.49  [Reserved]


Sec.  219.50  [Reserved]

[FR Doc. 2018-16115 Filed 7-26-18; 8:45 am]
BILLING CODE 3510-22-P