36370 Federal Register / Vol. 83, No. 145 / Friday, July 27, 2018 / Rules and Regulations 

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. 

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-authorizationnoaa-fisheries-nwfsc-fisheries-andecosystem-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 fiveyear 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: 

• Required monitoring of the 

sampling areas to detect the presence of 

marine mammals before deployment of 

certain research gear. 

• Required use of acoustic deterrent 

devices on surface trawl nets. 

• Required implementation of the 

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

incorporates best professional judgment, 

when necessary during certain research 

fishing operations. 

Background 

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 


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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-authorizationnoaa-fisheries-nwfsc-fisheries-andecosystem-research. 

NWFSC plans to conduct fisheries 

research with trawl gear used at various 

levels in the water column, hook-andline 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-noaafisheries-nwfsc-fisheries-and-ecosystemresearch. 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 


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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 ‘‘subharmonics’’ 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 subharmonics 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 moveon 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 eventcontingent decision-making processes, 

are clearly understood and agreed-upon. 

This may involve description of all 

required measures when submitting 

cruise instructions to OMAO or when 

completing contracts with external 

entities. 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 decisionmaking 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 postrelease 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 


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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 prewatch 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 


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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 mPa. 

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 


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setting operations and are considered to 

be at risk, immediate retrieval or 

suspension of operations may be 

warranted. If operations have been 

suspended because of the presence of 

marine mammals, the vessel will 

resume setting (when practicable) only 

when the animals are believed to have 

departed the area. If marine mammals 

are detected during retrieval operations 

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

are at the discretion of the OOD/CS and 

are dependent on the situation. 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 moveon 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 


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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/marinemammal-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/draftmarine-mammal-stock-assessmentreports). 


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Table 1. Marine Mammals Potentially Present in the Vicinity of NWFSC Research 

Activities. 

Occurrence Stock 

ESA/MMPA abundance 

Common Scientific name Stock status; (CV, Nmin, PBR Annual 

name r Strategic most recent M/SI3 

n n '"t:l (Y/N)1 abundance n ?0 Cfl 

survey)2 

Order Cetartiodactyla- Cetacea- Superfamily Mysticeti (baleen whales) 

Family Eschrichtiidae 

20,990 

Gray whale Eschrichtius Eastern North Pacific X X -;N (0.05; 624 132 robustus 20,125; 

2011) 

Family Balaenopteridae (rorquals) 

Megaptera California/Oregon/ 1,918 

Humpback novaeangliae Washington X X EID;Y (0.03; 119 ~9.2 whale kuzira (CA/ORIWA) 1,876; 

2014) 

Minke Balaenoptera 636 (0.72; acutorostrata CAIORIWA X X -;N 3.5 ~1.3 whale scammoni 369; 2014) 

Sei whale B. borealis Eastern North Pacific X EID;Y 519 (0.4; 0.75 0 borealis 374; 2014) 

9,029 

Fin whale B.physalus CAIORIWA X EID;Y (0.12; 81 ~2.0 physalus 8,127; 

2014) 

1,647 

Blue whale B. musculus Eastern North Pacific X EID;Y (0.07; 2.39 ~0.2 musculus 1,551; 

2011) 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae 

1,997 

Sperm Physeter CAIORIWA X EID;Y (0.57; 2.5 0.9 whale macrocephalus 1,270; 

2014) 

Family Kogiidae 

4,111 

Pygmy Kogia breviceps CAIORIWA X -;N (1.12; 19.2 0 

sperm whale 1,924; 

2014) 

Dwarf K. sima CA/OR/WA5 X -;N Unknown Undet. 0 

sperm whale 

Family Ziphiidae (beaked whales) 

Cuvier's 3,274 

beaked Zip hi us CAIORIWA X -; y (0.67; 21 <0.1 cavirostris 2,059; whale 2014) 

Baird's Berardius 2,697 (0.6; 

beaked bairdii CAIORIWA X -;N 1,633; 16 0 

whale 2014) 

Hubbs' Mesoplodon 3,044 beaked X 

whale carlhubbsi CA/OR/WA6 -; y (0.54; 20 0.1 

Blain ville's 1,967; 

beaked M densirostris X 2014) 
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whale 

Ginkgotoothed M ginkgodens X beaked 

whale 

Perrin's 

beaked Mperrini X 

whale 

Lesser 

(pygmy) M peruvianus X beaked 

whale 

Stejneger's 

beaked M stejnegeri X 

whale 

Family Delphinidae 

1,924 

Common Tursiops CAJORIW A Offshore X -;N (0.54; 11 ~1.6 1,255; bottlenose truncatus 2014) dolphin truncatus 453 (0.06; California Coastal X -;N 346; 2011) 2.7 ~2.0 

29,211 

Striped Stenella CA/OR/WA X -;N (0.2; 238 ~0.8 dolphin coeruleoalba 24,782; 

2014) 

Long- 101,305 

beaked Delphinus California X -;N (0.49; 657 ~35.4 common delphis bairdii 68,432; 

dolphin 2014) 

Short- 969,861 

beaked D. d. delphis CA/OR/WA X -;N (0.17; 8,393 ~40 common 839,325; 

dolphin 2014) 

Pacific 26,814 

white-sided Lagenorhynchus CA/OR/WA X X -;N (0.28; 191 7.5 

dolphin obliquidens 21,195; 

2014) 

Northern 26,556 

right whale Lissodelphis CA/OR/WA X -;N (0.44; 179 3.8 borealis 18,608; dolphin 2014) 

6,336 

Risso's Grampus CA/OR/WA X -;N (0.32; 46 ~3.7 dolphin griseus 4,817; 

2014) 

West Coast Transiene X X X -;N 243 (nla; 2.4 0 2009) 

Eastern North Pacific X -;N 240 (0.49; 1.6 0 Offshore 162; 2014) Killer whale Orcinus orca4 

Eastern North Pacific 83 (nla; 

Southern Resident X X E/D;Y 2016) 0.14 0 

Eastern North Pacific X X -;N 261 (nla; 1.96 0 Northern Resident 2011) 

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

Family Phocoenidae (porpoises) 

Phocoena 2,917 

Harbor phocoena Morro Bay X -;N (0.41; 21 ~0.6 porpoise 2,102; vomerina 2012) 
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3,715 

Monterey Bay X -;N (0.51; 25 0 2,480; 

2011) 

9,886 

San Francisco-Russian X -;N (0.51; 66 0 River 6,625; 

2011) 

35,769 

Northern CA/Southern X -;N (0.52; 475 ~0.6 OR 23,749; 

2011) 

21,487 

Northern ORIWA X X -;N (0.44; 151 ~3 Coast 15,123; 

2011) 

11,233 

Washington Inland X -;N (0.37; 66 ~7.2 Waters 8,308; 

2015) 

25,750 

Dall's Phocoenoides CA/OR/WA X X X -;N (0.45; 172 0.3 porpoise dalli dalli 17,954; 

2014) 

Order Carnivora- Superfamily Pinnipedia 

Family Otariidae (eared seals and sea lions) 

Arctocephalus 20,000 

Guadalupe philippii X TID;Y (nla; 542 ~3.210 fur seal 15,830; townsendi 2010) 

637,561 

Pribilof X D;Y (0.2; 11,602 436 Islands/Eastern Pacific 539,638; Northern fur Callorhinus 2015) seal ursinus 14,050 

California X -;N (nla; 7,524; 451 1.8 

2013) 

296,750 

California Zalophus United States X X X -;N (nla; 9,200 389 sea lion californianus 153,337; 

2011) 

Steller sea Eumetopias 41,638 

lion jubatus Eastern U.S. X X X D;Y (nla; 2015) 2,498 108 

monteriensis 

Family Phocidae (earless seals) 

30,968 

California X -;N (nla; 1,641 43 27,348; 

2012) 

24,732 

ORIW A Coasts X X -;N (0.12; Undet. 10.6 22,380; 

Harbor seal Phoca vitulina 1999) 

richardii 11,036 

Washington Northern X -;N (0.15; Undet. 9.8 Inland W aterss 7,213; 

1999) 

1,568 

Southern Puget Sounds X -;N (0.15; Undet. 3.4 1,025; 

1999) 
Federal Register / Vol. 83, No. 145 / Friday, July 27, 2018 / Rules and Regulations 36381 

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). 


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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 whitesided 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

Gear Species CCRA average annual take 

(total) 

PSRA average annual take 

(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

1Because 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 


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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 fiveyear 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 historicallycaptured 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 longbeaked 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 


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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 

Species Estimated 5-year total, trawl 1 Estimated 5-year total, hook 

and line 1 Estimated 5-year total, seine 1 Total, 

all 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/LCRRA) ............ 2 (CCRA/PSRA) ............................ 1 (LCRRA) ..................................... 10 

Steller sea lion ................................. 7 (5 CCRA/PSRA/LCRRA) ............ 1 ..................................................... 1 (LCRRA) ..................................... 9 

Harbor seal 4 .................................... 11 (5 CCRA/5 PSRA/LCRRA ........ 1 (PSRA) ........................................ 1 (LCRRA) ..................................... 13 

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

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

1Please 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. 2We 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 


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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 mPa (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

Species Shallow Deep 

Area density 

(animals/ 

km2) 1

Volumetric 

density 

(animals/ 

km3) 2

Estimated Level B 

harassment, 

0–200 m 

Estimated Level 

B harassment, 

>200 m Total 

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 

1All density estimates from Barlow and Forney (2007) unless otherwise indicated. 

2Volumetric 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 km2. 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. 


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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

Species Location 

Estimated total 

number of animals 

on potentially disturbed haul-outs 

Number of visits 

per year 

Estimated annual 

Level B harassment 

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 stockspecific risk in the PSRA. Separately, 


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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 humancaused 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 

Species 1

Total annual 

Level B 

harassment 

authorization 2

Percent of 

estimated 

population 

abundance 

Proposed total 

M/SI 3

authorization, 

2018–23 

SWFSC total 

M/SI 

authorization, 

2015–20 

Estimated 

maximum 

annual M/SI 4

PBR minus 

annual M/SI 

(%) 5

Stock 

trend 6

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 .................. ↓ 

Baird’s beaked whale .......... 3 0.1 0 0 0 n/a .................. ? 

Mesoplodont beaked whales 3 0.1 0 0 0 n/a .................. ↓ 

Bottlenose dolphin (offshore 

stock).

6 0.3 2 9 2.6 9.4 (27.7) ....... ? 

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) ..... ↑ 

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 stocks) 7.110 3.8 4 5 1.8 20.4 (8.8) ....... ? 

Harbor porpoise (Northern 

OR/WA coast).

........................ ........................ ........................ ........................ 2.2 148 (1.5) ........ ? 

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 .................. ↑ 

Northern fur seal 6 ................ 8 1,878 0.3 5 5 2.4 449.4 (0.5) ..... ↑ 

California sea lion ................ 3,659 0.4 10 25 7.6 8,815 (0.1) ..... ↑ 

Steller sea lion ..................... 174 0.4 9 10 4.4 2,390.6 (0.2) .. ↑ 

Harbor seal (CA) .................. 75,162 0.6 5 9 3.2 1,598.2 (0.2) .. → 

Harbor seal (OR/WA coast) ........................ 12.8 2 ........................ 1.8 Unknown ........ → 

Harbor seal (WA inland 

waters).

11,520 10.5 6 0 1.2 Unknown ........ → 

Northern elephant seal ........ 622 0.3 5 5 2.2 4,873.2 (0.1) .. ↑ 

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. 

1For 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. 3As explained earlier in this document, gear interaction could result in mortality, serious injury, or Level A harassment. Because we do not 

have sufficient information to enable us to parse out these outcomes, we present such take as a pool. For purposes of this negligible impact 

analysis we assume the worst case scenario (that all such takes result in mortality). 


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4This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock as a result of 

NMFS’ fisheries research activities and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To 

reach this total, we add one to the total for each pinniped 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. 5This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual humancaused 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. 6See 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. 7These 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., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

by mortality, serious injury, and Level A 

or Level B harassment, we consider 

other factors, such as the likely nature 

of any behavioral responses (e.g., 

intensity, duration), the context of any 

such responses (e.g., critical 

reproductive time or location, 

migration), as well as effects on habitat, 

and the likely effectiveness of 

mitigation. We also assess the number, 

intensity, and context of estimated takes 

by evaluating this information relative 

to population status. Consistent with the 

1989 preamble for NMFS’s 

implementing regulations (54 FR 40338; 

September 29, 1989), the impacts from 

other past and ongoing anthropogenic 

activities are incorporated into this 

analysis via their impacts on the 

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 longterm 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 (Nmin); the 

productivity rate of the stock at a small 

population size; and a recovery factor. 

Determination of appropriate values for 

these three elements incorporates 

significant precaution, such that 

application of the parameter to the 

management of marine mammal stocks 

may be reasonably certain to achieve the 

goals of the MMPA. For example, 

calculation of Nmin incorporates the 

precision and variability associated with 

abundance information 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 


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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 managementrelated 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 


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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 shortfinned 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 


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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 shortterm 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: 

• Occurrence of marine mammal 

species in action area (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) Action or 

environment (e.g., source 

characterization, propagation, ambient 

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

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

of marine mammal species with the 

action; or (4) biological or behavioral 

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

feeding areas); 

• Individual responses to acute 

stressors, or impacts of chronic 

exposures (behavioral or physiological); 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of an individual; or 

(2) population, species, or stock; 

• Effects on marine mammal habitat 

and resultant impacts to marine 

mammals; and 

• 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 


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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 watchstanders 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 threepoint 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 


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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 fiveyear 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 


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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 

■ 1. The authority citation for part 219 

continues to read as follows: 

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

■ 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 

§ 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. 

§ 219.42 Effective dates. 

Regulations in this subpart are 

effective from August 27, 2018, through 

August 28, 2023. 

§ 219.43 Permissible methods of taking. 

(a) Under LOAs issued pursuant to 

§ 216.106 of this chapter and § 219.47, 

the Holder of the LOA (hereinafter 

‘‘NWFSC’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in § 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. 

§ 219.44 Prohibitions. 

Notwithstanding takings 

contemplated in § 219.41 and 

authorized by a LOA issued under 

§ 216.106 of this chapter and § 219.47, 

no person in connection with the 

activities described in § 219.41 may: 

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

terms, conditions, and requirements of 

this subpart or a LOA issued under 

§ 216.106 of this chapter and § 219.47; 

(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. 

§ 219.45 Mitigation requirements. 

When conducting the activities 

identified in § 219.41(a), the mitigation 

measures contained in any LOA issued 

under § 216.106 of this chapter and 

§ 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 eventcontingent 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 


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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 moveon 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 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 

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 


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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 hauledout pinniped, and shall immediately 

remove the gear from the water upon 

observation of any marine mammal 

attempting to interact with the gear. 

§ 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 § 216.106 of this chapter 

and § 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 § 219.41(a) clearly 

causes the take of a marine mammal in 

a prohibited manner, NWFSC personnel 


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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 § 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. 

§ 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 § 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. 

§ 219.48 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under § 216.106 of 

this chapter and § 219.47 for the activity 

identified in § 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 § 216.106 of 

this chapter and § 219.47 for the activity 

identified in § 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 

§ 216.106 of this chapter and § 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. 

§ 219.49 [Reserved] 

§ 219.50 [Reserved] 

[FR Doc. 2018–16115 Filed 7–26–18; 8:45 am] 

BILLING CODE 3510–22–P 


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