[Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
[Proposed Rules]
[Pages 53606-53640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17848]



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Vol. 85

Friday,

No. 168

August 28, 2020

Part VI





 Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 219





Taking and Importing Marine Mammals; Taking Marine Mammals Incidental 
to Southwest Fisheries Science Center Fisheries Research; Proposed Rule

  Federal Register / Vol. 85, No. 168 / Friday, August 28, 2020 / 
Proposed Rules  

[[Page 53606]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 200810-0212]
RIN 0648-BJ71


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS's Office of Protected Resources (OPR) has received a 
request from NMFS's Southwest Fisheries Science Center (SWFSC) for 
authorization to take marine mammals incidental to fisheries research 
conducted in multiple specified geographical regions, over the course 
of five years from the date of issuance. As required by the Marine 
Mammal Protection Act (MMPA), NMFS is proposing regulations to govern 
that take, and requests comments on the proposed regulations. NMFS will 
consider public comments prior to making any final decision on the 
issuance of the requested MMPA authorization and agency responses will 
be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than 
September 28, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2020-0111, by the following method:
     Electronic submission: Submit all public comments via the 
Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0111, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of SWFSC's application and any supporting documents, as well 
as a list of the references cited in this document, may be obtained 
online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case 
of problems accessing these documents, please call the contact listed 
above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    This proposed rule would establish a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take of marine mammals incidental to the SWFSC's fisheries research 
activities in the California Current Ecosystem and the Antarctic Marine 
Living Resources Ecosystem research areas.
    We received an application from the SWFSC requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. Take would occur by Level B harassment incidental to the use 
of active acoustic devices, as well as by visual disturbance of 
pinnipeds in the Antarctic, and by Level A harassment, serious injury, 
or mortality incidental to the use of fisheries research gear. Please 
see ``Background'' below for definitions of harassment.

Legal Authority for the 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 and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the ``Proposed Mitigation'' 
section), as well as monitoring and reporting requirements. Section 
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR 
part 216, subpart I provide the legal basis for issuing this proposed 
rule containing five-year regulations, and for any subsequent LOAs. As 
directed by this legal authority, this proposed rule contains 
mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Proposed Rule

    Following is a summary of the major provisions of this proposed 
rule regarding SWFSC fisheries research activities. These measures 
include:
     Required monitoring of the sampling areas to detect the 
presence of marine mammals before deployment of certain research gear.
     Required implementation of the mitigation strategy known 
as the ``move-on rule mitigation protocol'' which incorporates best 
professional judgment, when necessary during certain research fishing 
operations.

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

[[Page 53607]]

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment.
    In 2015, NMFS prepared a Programmatic Environmental Assessment 
(PEA; Programmatic Environmental Assessment for Fisheries Research 
Conducted and Funded by the Southwest Fisheries Science Center) to 
consider the direct, indirect and cumulative effects to the human 
environment resulting from SWFSC's activities as well as the NMFS 
Office of Protected Resources (OPR) issuance of the regulations and 
subsequent incidental take authorization. NMFS made the PEA available 
to the public for review and comment, in relation specifically to its 
suitability for assessment of the impacts of our action under the MMPA. 
OPR signed a Finding of No Significant Impact (FONSI) related to our 
action under the MMPA on August 31, 2015. The PEA and the 2015 FONSI 
are available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-swfsc-fisheries-and-ecosystem-research.
    On May 11, 2020, NMFS announced the availability of a ``Draft 
Supplemental Programmatic Environmental Assessment (SPEA) for Fisheries 
Research Conducted and Funded by the Southwest Fisheries Science 
Center'' for review and comment (85 FR 27719). The purpose of the Draft 
SPEA is to evaluate potential direct, indirect, and cumulative effects 
of unforeseen changes in research that were not analyzed in the 2015 
PEA, or new research activities along the U.S. West Coast, throughout 
the Eastern Tropical Pacific Ocean, and in the Scotia Sea area off 
Antarctica. Where necessary, updates to certain information on species, 
stock status or other components of the affected environment that may 
result in different conclusions from the 2015 PEA are presented in this 
analysis.
    Information in the PEA, SPEA, SWFSC's application, and this notice 
collectively provide the environmental information related to proposed 
issuance of these regulations and subsequent incidental take 
authorization for public review and comment. We will review all 
comments submitted in response to this notice prior to concluding our 
NEPA process or making a final decision on the request for incidental 
take authorization.

Summary of Request

    On April 30, 2020, we received an adequate and complete request 
from SWFSC for authorization to take marine mammals incidental to 
fisheries research activities. On May 8, 2020 (85 FR 27388), we 
published a notice of receipt of SWFSC's application in the Federal 
Register, requesting comments and information related to the SWFSC 
request for thirty days. We did not receive any comments in response.
    These regulations would be the second consecutive five-year 
incidental take regulations issued in response to a petition from 
SWFSC. The initial regulations were finalized in 2015 and remain 
effective through October 30, 2020 (80 FR 58982; September 30, 2015). 
Three Letters of Authorization (LOA) were issued to SWFSC pursuant to 
the regulations, related to SWFSC research survey activities in the 
California Current Ecosystem (CCE), the Eastern Tropical Pacific (ETP), 
and the Antarctic Marine Living Resources Ecosystem (AMLR). Information 
related to this rulemaking and required reporting submitted by SWFSC 
according to the terms of the LOAs may be found online at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-swfsc-fisheries-and-ecosystem-research. SWFSC adhered to all 
mitigation, monitoring, and reporting requirements and did not exceed 
authorized numbers of take.
    SWFSC proposes to continue conducting fisheries research using 
pelagic trawl gear used at various levels in the water column, pelagic 
longlines with multiple hooks, purse seine gear, and other gear. If a 
marine mammal interacts with gear deployed by SWFSC, the outcome could 
potentially be Level A harassment, serious injury (i.e., any injury 
that will likely result in mortality), or mortality. However, there is 
not sufficient information upon which to base a prediction of what the 
outcome may be for any particular interaction. Therefore, SWFSC has 
pooled the estimated number of incidents of take resulting from gear 
interactions, and we have assessed the potential impacts accordingly. 
SWFSC also uses various active acoustic devices in the conduct of 
fisheries research, and use of these devices has the potential to 
result in Level B harassment of marine mammals. Level B harassment of 
pinnipeds hauled out on ice may also occur, in the Antarctic only, as a 
result of visual disturbance from vessels conducting SWFSC research. 
The proposed regulations would be valid for five years from the date of 
issuance.
    The SWFSC conducts fisheries research surveys in the CCE, ETP, and 
the AMLR. However, SWFSC does not plan to conduct research over the 
five-year period in the ETP. Therefore, these proposed regulations 
address only the CCE and AMLR. In the CCE, SWFSC requests authorization 
to take individuals of 24 stocks by Level A harassment, serious injury, 
or mortality (hereafter referred to as M/SI) and of 38 stocks by Level 
B harassment. In the AMLR, SWFSC requests authorization to take 
individuals of fifteen species by Level B harassment. No takes by M/SI 
are anticipated in the AMLR.

Description of the Specified Activity

Overview

    The SWFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. SWFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. Some 
surveys may be conducted onboard commercial fishing vessels or by 
cooperating scientists on non-NOAA vessels, but the SWFSC designs and 
executes the studies and funds vessel time. The SWFSC proposes to 
administer and conduct approximately 18 survey programs over the five-
year period, within two separate research areas. Please see Table 1-2 
in SWFSC's application for details relating to the planned survey 
programs. The gear types used fall into several categories: Towed nets 
fished at various levels in the water column, longline and other hook 
and line gear, purse seine nets, and other gear. Only use of trawl 
nets, hook and line gear, and purse seine nets are likely to result in 
interaction with marine mammals. Many of these surveys also use active 
acoustic devices.
    The Federal government has a responsibility to conserve and protect 
living marine resources in U.S. waters and has also entered into a 
number of international agreements and treaties related to the 
management of living marine resources in international waters outside 
the United States. NOAA has the primary responsibility for managing 
marine finfish and shellfish species and their habitats, with that 
responsibility delegated within NOAA to NMFS.
    In order to direct and coordinate the collection of scientific 
information needed to make informed fishery management decisions, 
Congress created six regional fisheries science

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centers, each a distinct organizational entity and the scientific focal 
point within NMFS for region-based Federal fisheries-related research. 
This research is aimed at monitoring fish stock recruitment, abundance, 
survival and biological rates, geographic distribution of species and 
stocks, ecosystem process changes, and marine ecological research. The 
SWFSC is the research arm of NMFS in the southwest region of the United 
States. The SWFSC conducts research and provides scientific advice to 
manage fisheries and conserve protected species in the geographic 
research areas listed above and provides scientific information to 
support the Pacific Fishery Management Council and numerous other 
domestic and international fisheries management organizations.

Dates and Duration

    The specified activity may occur at any time during the five-year 
period of validity of the proposed regulations. Dates and duration of 
individual surveys are inherently uncertain, based on congressional 
funding levels for the SWFSC, weather conditions, or ship 
contingencies. In addition, cooperative research is designed to provide 
flexibility on a yearly basis in order to address issues as they arise. 
Some cooperative research projects last multiple years or may continue 
with modifications. Other projects only last one year and are not 
continued. Most cooperative research projects go through an annual 
competitive selection process to determine which projects should be 
funded based on proposals developed by many independent researchers and 
fishing industry participants. SWFSC survey activity does occur during 
most months of the year; however, trawl surveys typically occur during 
May through June and September and longline surveys are typically 
completed during June-July and September.

Specified Geographical Region

    The SWFSC plans to conduct research within two research areas 
considered to be distinct specified geographical regions: the CCE and 
AMLR. No research activity is planned within the ETP over the next five 
years. Please see Figures 1-1, 2-1, and 2-2 in the SWFSC application 
for maps of the research areas. We note here that, while the specified 
geographical regions within which the SWFSC operates may extend outside 
of the U.S. Exclusive Economic Zone (EEZ), the MMPA's authority does 
not extend into foreign territorial waters. Detailed descriptions of 
the SWFSC's research areas were provided in our notice of proposed 
rulemaking for SWFSC's previous incidental take regulations (80 FR 
8166; February 13, 2015). Those descriptions remain accurate and 
sufficient, and we refer the reader to that notice rather than 
reprinting the information here.

Detailed Description of Activities

    The Federal government has a trust responsibility to protect living 
marine resources in waters of the United States. These waters extend to 
200 nm from the shoreline and include the EEZ. The U.S. government has 
also entered into a number of international agreements and treaties 
related to the management of living marine resources in international 
waters outside of the EEZ (i.e., the high seas). To carry out its 
responsibilities over U.S. and international waters, Congress has 
enacted several statutes authorizing certain Federal agencies to 
administer programs to manage and protect living marine resources. 
Among these Federal agencies, NOAA has the primary responsibility for 
protecting marine finfish and shellfish species and their habitats. 
Within NOAA, NMFS has been delegated primary responsibility for the 
science-based management, conservation, and protection of living marine 
resources under statutes including the MSA, MMPA, Endangered Species 
Act (ESA), and the Antarctic Marine Living Resources Convention Act.
    Within NMFS, six regional fisheries science centers direct and 
coordinate the collection of scientific information needed to inform 
fisheries management decisions. Each science center is a distinct 
entity and is the scientific focal point for a particular region. SWFSC 
conducts research and provides scientific advice to manage fisheries 
and conserve protected species along the U.S. West Coast, throughout 
the eastern tropical Pacific Ocean, and in the Southern Ocean off 
Antarctica. SWFSC provides scientific information to support the 
Pacific Fishery Management Council and other domestic and international 
fisheries management organizations.
    The SWFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. SWFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels, and 
some SWFSC-funded research may be conducted by cooperative scientists. 
The SWFSC proposes to administer and conduct approximately 18 survey 
programs over the five-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, purse seine nets, and other gear. Only use of trawl nets, hook 
and line gear, and purse seine nets are likely to result in interaction 
with marine mammals. Many of these surveys also use active acoustic 
devices. These surveys may be conducted aboard NOAA-operated research 
vessels (R/V), aboard vessels owned and operated by cooperating 
agencies and institutions, or aboard charter vessels.
    In the following discussion, we summarily describe various gear 
types used by SWFSC, with reference to specific fisheries and ecosystem 
research activities conducted by the SWFSC. This is not an exhaustive 
list of gear and/or devices that may be utilized by SWFSC but is 
representative of gear categories and is complete with regard to all 
gears with potential for interaction with marine mammals. Additionally, 
relevant active acoustic devices, which are commonly used in SWFSC 
survey activities, are described separately in a subsequent section. 
Please see Appendix B of SWFSC's application for further description, 
pictures, and diagrams of research gear and vessels. Full details 
regarding planned research activities are provided in Tables 1-2 and 1-
3 of SWFSC's application, with specific gear used in association with 
each research project and full detail regarding gear characteristics 
and usage provided. Full detail is not repeated here.
    Trawl nets--A trawl is a funnel-shaped net towed behind a boat to 
capture fish. The codend (or bag) is the fine-meshed portion of the net 
most distant from the towing vessel where fish and other organisms 
larger than the mesh size are retained. In contrast to commercial 
fishery operations, which generally use larger mesh to capture 
marketable fish, research trawls often use smaller mesh to enable 
estimates of the size and age distributions of fish in a particular 
area. The body of a trawl net is generally constructed of relatively 
coarse mesh that functions to gather schooling fish so that they can be 
collected in the codend. The opening of the net, called the mouth, is 
extended horizontally by large panels of wide mesh called wings. The 
mouth of the net is held open by hydrodynamic force exerted on the 
trawl doors attached to the wings of the net. As the net is towed 
through the water, the force of the water spreads the trawl doors 
horizontally apart. The top of a net is called the headrope, and the 
bottom is called the footrope.
    The trawl net is usually deployed over the stern of the vessel and 
attached with two cables (or warps) to winches

[[Page 53609]]

on the deck of the vessel. The cables are played out until the net 
reaches the fishing depth. Trawl vessels typically travel at speeds of 
2-5 kn while towing the net for time periods up to several hours. The 
duration of the tow depends on the purpose of the trawl, the catch 
rate, and the target species. At the end of the tow the net is 
retrieved and the contents of the codend are emptied onto the deck. For 
research purposes, the speed and duration of the tow and the 
characteristics of the net are typically standardized to allow 
meaningful comparisons of data collected at different times and 
locations. Active acoustic devices (described later) incorporated into 
the research vessel and the trawl gear monitor the position and status 
of the net, speed of the tow, and other variables important to the 
research design. Most SWFSC research trawling activities utilize 
pelagic (or midwater) trawls, which are designed to operate at various 
depths within the water column but not to contact the seafloor.
    Midwater and surface trawls are used in the juvenile rockfish, 
juvenile salmon and sardine surveys at fixed stations from southern 
California to Washington annually from April-July and in August-
September. The tows are conducted near the surface down to 
approximately 15-30 m deep, mainly at night using a charter vessel or a 
NOAA vessel. These nets are also used in juvenile salmon surveys 
between southern California and Oregon during daytime trawls that last 
approximately 45 minutes at the target depth. Compared to the Nordic 
264 trawl, takes of marine mammals by Modified-Cobb trawl have been 
historically small. While the Nordic 264 rope trawl is intended to fish 
at the surface, the Cobb trawl is typically fishing at 30 m headrope 
depth, thus it is rarely at the surface aside from the deployment and 
retrieval stages. Fishing at depth, at slower speeds, and for shorter 
duration, along with having a smaller opening and mesh size, mitigate 
marine mammal takes by the modified Cobb. Table 6-3 of the SWFSC 
application summarizes the number of trawls, fishing depth and average 
tow time for modified Cobb and Nordic 264 trawl gear over the period 
2015-2018. The table shows that while Nordic 264 gear is used more 
frequently, the total number of trawls using this gear has been reduced 
while the use of modified Cobb gear has remained at generally the same 
level. Please see Section 1 and Appendix B of SWFSC's application for 
additional detail.
    Longline--Longline vessels fish with baited hooks attached to a 
mainline (or groundline). The length of the longline and the number of 
hooks depend on the species targeted, the size of the vessel, and the 
purpose of the fishing activity. Hooks are attached to the mainline by 
another thinner line called a gangion. The length of the gangion and 
the distance between gangions depends on the purpose of the fishing 
activity. Depending on the fishery, longline gear can be deployed on 
the seafloor (bottom longline), in which case weights are attached to 
the mainline, or near the surface of the water (pelagic longline), in 
which case buoys are attached to the mainline to provide flotation and 
keep the baited hooks suspended in the water. Radar reflectors, radio 
transmitters, and light sources are often used to help fishers 
determine the location of the longline gear prior to retrieval.
    A commercial longline can be miles long and have thousands of hooks 
attached, although longlines used for research surveys are often 
shorter. The pelagic longline gear used for SWFSC research surveys 
typically use 200-400 hooks attached to a steel or monofilament 
mainline from 2-12 miles long (3-19 km). There are no internationally-
recognized standard measurements for hook size, and a given size may be 
inconsistent between manufacturers. Larger hooks, as are used in 
longlining, are referenced by increasing whole numbers followed by a 
slash and a zero as size increases (e.g., \1/0\ up to 20/0). The 
numbers represent relative sizes, normally associated with the gap (the 
distance from the point tip to the shank). Bottom longlines used for 
commercial fishing can be up to several miles long, but those used for 
SWFSC research use shorter lines with approximately 75 hooks per line. 
SWFSC sablefish and rockfish life history surveys using bottom longline 
gear are extremely small scale with a low level of effort 
(approximately 200 hooks per month).
    The time period between deployment and retrieval of the longline 
gear is the soak time. Soak time is an important parameter for 
calculating fishing effort. For commercial fisheries the goal is to 
optimize the soak time in order to maximize catch of the target species 
while minimizing the bycatch rate and minimizing damage to target 
species that may result from predation by sharks or other predators.
    SWFSC also uses deep-set buoy gear. Deep-set buoy gear is a 
particular type of pelagic longline that includes a buoy flotation 
system (i.e., a strike-indicator float/flag, a large, non-compressible 
buoy and a float affixed with a radar reflector). A set of gear 
consists of 500-lb (227-kg) test mainline monofilament rigged with a 1-
2 kg drop sinker to orient the mainline and terminal fishing gear 
vertically in the water column. Other pelagic longline gear typically 
uses a long monofilament mainline suspended horizontally near the 
surface of the water. However, deep-set buoy gear uses a vertically-
oriented mainline with two monofilament gangions that branch from the 
mainline at a target depth below the thermocline (250-400 m for SWFSC). 
SWFSC also uses hook-and-line, i.e., rod-and-reel, for some survey 
efforts.
    Highly migratory species surveys are conducted June-July from a 
NOAA vessel or a charter vessel. Table 6-5 of SWFSC's application 
summarizes hook and line survey efforts over the period 2015-2017; hook 
and line surveys were not conducted in 2018. Thresher shark surveys are 
not planned for the 2020-2025 survey period. Please see Section 1 and 
Appendix B of SWFSC's application for additional detail.
    Seine nets--Seine nets typically hang vertically in the water with 
the bottom edge held down by weights and the top edge buoyed by floats. 
Commercial fishers use purse seines to capture schooling pelagic 
species by encircling the fish and then using a line at the bottom that 
enables the net to be closed like a purse. Commercial purse seines vary 
in size according to vessel, mesh size, and target species.
    The SWFSC proposes to conduct purse seine surveys in nearshore 
areas. Seining will be based on SWFSC and Washington Department of Fish 
and Wildlife protocols to allow dip-netting of fish from the seine for 
sample processing onboard. As an example, a seine net 230 fathoms in 
length, 2800 meshes deep, with a mesh size of 11/16 may be used for 
this research. Transects may occur from the northernmost sampling 
location to the vicinity of Eureka, California in the nearshore area 
approximately 5 nmi apart, alternating direction (east-west and vice 
versa) for 3-7 transects each day, ideally coincident with NOAA trawl 
surveys further offshore, for about 100 total transects. SWFSC may set 
an average of 3 times/day for 60 minutes for approximately 60 sets 
total. To conduct day-night comparative surveys, SWFSC may set 
approximately 4/day in a 24-hour period (each for 60 minutes) over 
about 5 days (i.e., minimum of 2 sets each during daytime and nighttime 
for a total of 20 sets). Please see Section 1 and Appendix B of SWFSC's 
application for additional detail.
    Other nets--SWFSC surveys utilize various small, fine-mesh, towed 
nets designed to sample small fish and pelagic invertebrates. These 
nets can be

[[Page 53610]]

broadly categorized as small trawls (which are separated from large 
trawl nets due to small trawls' discountable potential for interaction 
with marine mammals) and plankton nets. Please see Section 1 and 
Appendix B of SWFSC's application for additional detail.
    1. The Tucker trawl is a medium-sized single-warp net used to study 
pelagic fish and zooplankton. The Tucker trawl consists of a series of 
nets that can be opened and closed sequentially via stepping motor 
without retrieving the net from the fishing depth. It is designed for 
deep oblique tows where up to three replicate nets can be sequentially 
operated by a double release mechanism and is typically equipped with a 
full suite of instruments, including inside and outside flow meters; 
conductivity, temperature, and depth profilers (CTD); and pitch sensor.
    2. The Multiple Opening/Closing Net and Environmental Sensing 
System (MOCNESS) uses a stepping motor to sequentially control the 
opening and closing of the net. The MOCNESS uses underwater and 
shipboard electronics to control the device. The electronics system 
continuously monitors the functioning of the nets, frame angle, 
horizontal velocity, vertical velocity, volume filtered, and selected 
environmental parameters, such as salinity and temperature. The MOCNESS 
is used for specialized zooplankton surveys.
    3. The Isaacs-Kidd midwater trawl (IKMT) is used to collect 
deepwater biological specimens larger than those taken by standard 
plankton nets. The mouth of the net is approximately 1.5 x 1.8 m, and 
is attached to a wide, V-shaped, rigid diving vane that keeps the mouth 
of the net open and maintains the net at depth for extended periods. 
The IKMT is a long, round net approximately 6.5 m long, with a series 
of hoops decreasing in size from the mouth of the net to the codend, 
which maintain the shape of the net during towing. While most trawls 
must be towed at speeds of 1-2 kn because of the high level of drag 
exerted by the net in the water, an IKMT can be towed at speeds as high 
as 5 kn.
    4. SWFSC also uses various neuston nets, which are frame trawls 
towed horizontally at the top of the water column in order to capture 
neuston (i.e., organisms that inhabit the water's surface), and 
plankton nets, which usually consist of fine mesh attached to a 
weighted frame which spreads the mouth of the net to cover a known 
surface area in order to sample plankton and fish eggs from various 
parts of the water column. Examples include manta nets, which are towed 
horizontally at the surface of the water; bongo nets, which are towed 
through the water at an oblique angle to sample plankton over a range 
of depths; and the Oozeki net, which is a frame trawl used for 
quantitative sampling of larval and juvenile pelagic fishes.
    Conductivity, temperature, and depth profilers--A CTD profiler is 
the primary research tool for determining chemical and physical 
properties of seawater. A shipboard CTD is made up of a set of small 
probes attached to a large (1-2 m diameter) metal rosette wheel. The 
rosette is lowered through the water column on a cable, and CTD data 
are observed in real time via a conducting cable connecting the CTD to 
a computer on the ship. The rosette also holds a series of sampling 
bottles that can be triggered to close at different depths in order to 
collect a suite of water samples that can be used to determine 
additional properties of the water over the depth of the CTD cast. A 
standard CTD cast, depending on water depth, requires two to five hours 
to complete. The data from a suite of samples collected at different 
depths are often called a depth profile. Depth profiles for different 
variables can be compared in order to glean information about physical, 
chemical, and biological processes occurring in the water column. 
Salinity, temperature, and depth data measured by the CTD instrument 
are essential for characterization of seawater properties.
    Tables 1-2 and 1-3 of the SWFSC's application provide detailed 
information of all surveys planned by SWFSC; full detail is not 
repeated here. Many of these surveys also use small trawls, plankton 
nets, and/or other gear; however, only gear with likely potential for 
marine mammal interaction is described. Here we provide a summary of 
projected annual survey effort for those gears that we believe present 
the potential for marine mammal interaction (Table 1). This summary is 
intended only to provide a sense of the level of effort, and actual 
level of effort may vary from year to year. Gear specifications vary; 
please see Table 1-2 and Appendix B of SWFSC's application. Please note 
that no trawl surveys are planned within AMLR over the next five years. 
Take of marine mammals incidental to SWFSC research is expected to 
occur in the form of Level B harassment only as a result of the use of 
active acoustic systems or due to visual disturbance of hauled-out 
pinnipeds.

                           Table 1--Projected Annual SWFSC Survey Effort by Gear Type
----------------------------------------------------------------------------------------------------------------
             Survey type                      Gear type                Tows/sets           Duration per tow/set
----------------------------------------------------------------------------------------------------------------
                                                       CCE
----------------------------------------------------------------------------------------------------------------
Midwater trawl.......................  NETS Nordic 264 (380     50.....................  30 min.
                                        m\2\ mouth area).
Midwater trawl.......................  Modified Cobb (80 m\2\   150....................  15 min.
                                        mouth area).
Purse seine..........................  Varies.................  10-25..................  Varies.
Pelagic longline.....................  200-400 hooks..........  Varies.................  2-4 hr (up to 4-6 hr
                                                                                          for certain target
                                                                                          species).
Pelagic longline.....................  75 hooks...............  Varies.................  2-4 hr.
Hook and line/handline...............  Various................  100-500 casts/cruise...  3 hr.
Hook and line........................  Micro-troll............  50.....................  2 hr.
----------------------------------------------------------------------------------------------------------------

    Description of Active Acoustic Sound Sources--This section contains 
a brief technical background on sound, the characteristics of certain 
sound types, and on metrics used in this proposal inasmuch as the 
information is relevant to SWFSC's specified activity and to an 
understanding of the potential effects of the specified activity on 
marine mammals. We also describe the active acoustic devices used by 
SWFSC. For general information on sound and its interaction with the 
marine environment, please see, e.g., Au and

[[Page 53611]]

Hastings (2008); Richardson et al. (1995); Urick (1983).
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in Hz or cycles per second. Wavelength is the distance 
between two peaks or corresponding points of a sound wave (length of 
one cycle). Higher frequency sounds have shorter wavelengths than lower 
frequency sounds, and typically attenuate (decrease) more rapidly, 
except in certain cases in shallower water. Amplitude is the height of 
the sound pressure wave or the ``loudness'' of a sound and is typically 
described using the relative unit of the dB. A sound pressure level 
(SPL) in dB is described as the ratio between a measured pressure and a 
reference pressure (for underwater sound, this is 1 microPascal 
([mu]Pa)) and is a logarithmic unit that accounts for large variations 
in amplitude; therefore, a relatively small change in dB corresponds to 
large changes in sound pressure. The source level (SL) represents the 
SPL referenced at a distance of 1 m from the source (referenced to 1 
[mu]Pa), while the received level is the SPL at the listener's position 
(referenced to 1 [mu]Pa).
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average. Root mean square accounts for both positive 
and negative values; squaring the pressures makes all values positive 
so that they may be accounted for in the summation of pressure levels. 
This measurement is often used in the context of discussing behavioral 
effects, in part because behavioral effects, which often result from 
auditory cues, may be better expressed through averaged units than by 
peak pressures. Peak sound pressure (also referred to as zero-to-peak 
sound pressure or 0-pk) is the maximum instantaneous sound pressure 
measurable in the water at a specified distance from the source and is 
represented in the same units as the rms sound pressure.
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy in a stated frequency band over a stated 
time interval or event, and considers both intensity and duration of 
exposure. The per-pulse SEL is calculated over the time window 
containing the entire pulse (i.e., 100 percent of the acoustic energy). 
SEL is a cumulative metric; it can be accumulated over a single pulse, 
or calculated over periods containing multiple pulses. Cumulative SEL 
represents the total energy accumulated by a receiver over a defined 
time window or during an event.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner similar to ripples on the surface of a pond and may be either 
directed in a beam or beams (as for the sources considered here) or may 
radiate in all directions (omnidirectional sources). The compressions 
and decompressions associated with sound waves are detected as changes 
in pressure by aquatic life and man-made sound receptors such as 
hydrophones.
    Sounds are often considered to fall into one of two general types: 
pulsed and non-pulsed (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see 
Southall et al. (2007) for an in-depth discussion of these concepts. 
The distinction between these two sound types is not always obvious, as 
certain signals share properties of both pulsed and non-pulsed sounds. 
A signal near a source could be categorized as a pulse; but, due to 
propagation effects as it moves farther from the source, the signal 
duration becomes longer (e.g., Greene and Richardson, 1988).
    Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems. The 
duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment. All active acoustic 
systems used by SWFSC produce non-pulsed intermittent sound.
    A wide range of active acoustic devices are used in SWFSC fisheries 
surveys for remotely sensing bathymetric, oceanographic, and biological 
features of the environment. Most of these sources involve relatively 
high frequency, directional, and brief repeated signals tuned to 
provide sufficient focus and resolution on specific objects. SWFSC also 
uses passive listening sensors (i.e., remotely and passively detecting 
sound rather than producing it), which do not have the potential to 
impact marine mammals. SWFSC active acoustic sources include various 
echosounders (e.g., multibeam systems), scientific sonar systems, 
positional sonars (e.g., net sounders for determining trawl position), 
and environmental sensors (e.g., current profilers).
    Mid- and high-frequency underwater acoustic sources typically used 
for scientific purposes operate by creating an oscillatory overpressure 
through rapid vibration of a surface, using either electromagnetic 
forces or the piezoelectric effect of some materials. A vibratory 
source based on the piezoelectric effect is commonly referred to as a 
transducer. Transducers are usually designed to excite an acoustic wave 
of a specific frequency, often in a highly directive beam, with the 
directional capability increasing with operating frequency. The main 
parameter characterizing directivity is the beam width, defined as the 
angle subtended by diametrically opposite ``half power'' (-3 dB) points 
of the main lobe. For different transducers at a single operating 
frequency the beam width can vary from 180[deg] (almost 
omnidirectional) to only a few degrees. Transducers are usually 
produced with either circular or rectangular active surfaces. For 
circular transducers, the beam width in the horizontal plane (assuming 
a downward pointing main beam) is equal in all directions, whereas 
rectangular transducers produce more complex beam patterns with 
variable beam width in the horizontal plane.
    The types of active sources employed in fisheries acoustic research 
and monitoring, based largely on their relatively high operating 
frequencies

[[Page 53612]]

and other output characteristics (e.g., signal duration, directivity), 
should be considered to have very low potential to cause effects to 
marine mammals that would rise to the level of a ``take,'' as defined 
by the MMPA. Acoustic sources operating at high output frequencies 
(>180 kHz) that are outside the known functional hearing capability of 
any marine mammal are unlikely to be detected by marine mammals. 
Although it is possible that these systems may produce subharmonics at 
lower frequencies, this component of acoustic output would also be at 
significantly lower SPLs. While the production of subharmonics can 
occur during actual operations, the phenomenon may be the result of 
issues with the system or its installation on a vessel rather than an 
issue that is inherent to the output of the system. Many of these 
sources also generally have short duration signals and highly 
directional beam patterns, meaning that any individual marine mammal 
would be unlikely to even receive a signal that would likely be 
inaudible.
    Acoustic sources present on most SWFSC fishery research vessels 
include a variety of single, dual, and multi-beam echosounders (many 
with a variety of modes), sources used to determine the orientation of 
trawl nets, and several current profilers with lower output frequencies 
that certain marine mammals may detect (e.g., 10-180 kHz). However, 
while likely potentially audible to certain species, these sources also 
have generally short ping durations and are typically focused (highly 
directional) to serve their intended purpose of mapping specific 
objects, depths, or environmental features. These characteristics 
reduce the likelihood of an animal receiving or perceiving the signal. 
A number of these sources, particularly those with relatively lower 
output frequencies coupled with higher output levels 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 impact on marine mammals.
    We now describe specific acoustic sources used by SWFSC. The 
acoustic system used during a particular survey is optimized for 
surveying under specific environmental conditions (e.g., depth and 
bottom type). Lower frequencies of sound travel further in the water 
(i.e., good range) but provide lower resolution (i.e., are less 
precise). Pulse width and power may also be adjusted in the field to 
accommodate a variety of environmental conditions. Signals with a 
relatively long pulse width travel further and are received more 
clearly by the transducer (i.e., good signal-to-noise ratio) but have a 
lower range resolution. Shorter pulses provide higher range resolution 
and can detect smaller and more closely spaced objects in the water. 
Similarly, higher power settings may decrease the utility of collected 
data. Power level is also adjusted according to bottom type, as some 
bottom types have a stronger return and require less power to produce 
data of sufficient quality. Power is typically set to the lowest level 
possible in order to receive a clear return with the best data. Survey 
vessels may be equipped with multiple acoustic systems; each system has 
different advantages that may be utilized depending on the specific 
survey area or purpose. In addition, many systems may be operated at 
one of two frequencies or at a range of frequencies. Primary source 
categories are described below, and characteristics of representative 
predominant sources are summarized in Table 2. Predominant sources are 
those that, when operated, would be louder than and/or have a larger 
acoustic footprint than other concurrently operated sources, at 
relevant frequencies.
    (1) Multi-Frequency Narrow Beam Scientific Echosounders--
Echosounders and sonars work by transmitting acoustic pulses into the 
water that travel through the water column, reflect off the seafloor, 
and return to the receiver. Water depth is measured by multiplying the 
time elapsed by the speed of sound in water (assuming accurate sound 
speed measurement for the entire signal path), while the returning 
signal itself carries information allowing ``visualization'' of the 
seafloor. Multi-frequency split-beam sensors are deployed from SWFSC 
survey vessels to acoustically map the distributions and estimate the 
abundances and biomasses of many types of fish; characterize their 
biotic and abiotic environments; investigate ecological linkages; and 
gather information about their schooling behavior, migration patterns, 
and avoidance reactions to the survey vessel. The use of multiple 
frequencies allows coverage of a broad range of marine acoustic survey 
activity, ranging from studies of small plankton to large fish schools 
in a variety of environments from shallow coastal waters to deep ocean 
basins. Simultaneous use of several discrete echosounder frequencies 
facilitates accurate estimates of the size of individual fish, and can 
also be used for species identification based on differences in 
frequency-dependent acoustic backscattering between species.
    (2) Multibeam Echosounder and Sonar--Multibeam echosounders and 
sonars operate similarly to the devices described above. However, the 
use of multiple acoustic ``beams'' allows coverage of a greater area 
compared to single beam sonar. The sensor arrays for multibeam 
echosounders and sonars are usually mounted on the keel of the vessel 
and have the ability to look horizontally in the water column as well 
as straight down. Multibeam echosounders and sonars are used for 
mapping seafloor bathymetry, estimating fish biomass, characterizing 
fish schools, and studying fish behavior.
    (3) Single-Frequency Omnidirectional Sonar--These sources provide 
omnidirectional imaging around the source with different vertical 
beamwidths available, which results in differential transmitting beam 
patterns. The cylindrical multi-element transducer allows the 
omnidirectional sonar beam to be electronically tilted down to -
90[deg], allowing automatic tracking of schools of fish within the 
entire water volume around the vessel.
    (4) Acoustic Doppler Current Profiler (ADCP)--An ADCP is a type of 
sonar used for measuring water current velocities simultaneously at a 
range of depths. Whereas current depth profile measurements in the past 
required the use of long strings of current meters, the ADCP enables 
measurements of current velocities across an entire water column. The 
ADCP measures water currents with sound, using the Doppler effect. A 
sound wave has a higher frequency when it moves towards the sensor 
(blue shift) than when it moves away (red shift). The ADCP works by 
transmitting ``pings'' of sound at a constant frequency into the water. 
As the sound waves travel, they ricochet off particles suspended in the 
moving water, and reflect back to the instrument. Due to the Doppler 
effect, sound waves bounced back from a particle moving away from the 
profiler have a slightly lowered frequency when they return. Particles 
moving toward the instrument send back higher frequency waves. The 
difference in frequency between the waves the profiler sends out and 
the waves it receives is called the Doppler shift. The instrument uses 
this shift to calculate how fast the particle and the water around it 
are moving. Sound waves that hit particles far from the profiler take 
longer to come back than waves that strike close by. By measuring the 
time it takes for the waves to return to the sensor, and the Doppler 
shift, the profiler can measure current speed at many different depths 
with each series of pings.

[[Page 53613]]

    An ADCP anchored to the seafloor can measure current speed not just 
at the bottom, but at equal intervals to the surface. An ADCP 
instrument may be anchored to the seafloor or can be mounted to a 
mooring or to the bottom of a boat. ADCPs that are moored need an 
anchor to keep them on the bottom, batteries, and a data logger. 
Vessel-mounted instruments need a vessel with power, a shipboard 
computer to receive the data, and a GPS navigation system so the ship's 
movements can be subtracted from the current velocity data. ADCPs 
operate at frequencies between 75 and 300 kHz.
    (5) Net Monitoring Systems--During trawling operations, a range of 
sensors may be used to assist with controlling and monitoring gear. Net 
sounders give information about the concentration of fish around the 
opening to the trawl, as well as the clearances around the opening and 
the bottom of the trawl; catch sensors give information about the rate 
at which the codend is filling; symmetry sensors give information about 
the optimal geometry of the trawls; and tension sensors give 
information about how much tension is in the warps and sweeps.

                                   Table 2--Operating Characteristics of Representative SWFSC Active Acoustic Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Single ping duration
       Active acoustic system         Operating frequencies   Maximum source level    (ms) and repetition        Orientation/        Nominal beamwidth
                                                                                           rate (Hz)            directionality
--------------------------------------------------------------------------------------------------------------------------------------------------------
Simrad EK60/EK80 narrow beam         18, 38, 70, 120, 200,   226 dB................  Variable, commonly 1   Downward looking.....  7[deg]
 echosounders.                        333 kHz (Primary                                ms at 0.5 Hz.
                                      frequencies are 38,
                                      70, 120, 200 kHz).
Simrad ME70 multibeam echosounder..  70-120 kHz............  205 dB................  0.06-5 ms at 1-4 Hz..  Primarily downward     130[deg]
                                                                                                             looking.
Simrad MS70 multibeam sonar........  75-112 kHz............  206 dB................  2-10 ms at 1-2 Hz....  Primarily side         60[deg]
                                                                                                             looking.
Simrad SX90 narrow beam sonar......  20-30 kHz.............  219 dB................  Variable.............  Omnidirectional......  4-5[deg]
Teledyne ADCP, Ocean Surveyor......  75 kHz................  224 dB................  0.2 Hz...............  Downward looking.....  30[deg]
Simrad ITI catch monitoring system.  27-33 kHz.............  214 dB................  0.05-0.5 Hz..........  Downward looking.....  40[deg]
--------------------------------------------------------------------------------------------------------------------------------------------------------

Description of Marine Mammals in the Area of the Specified Activity

    We have reviewed SWFSC's species descriptions--which summarize 
available information regarding status and trends, distribution and 
habitat preferences, behavior and life history, and auditory 
capabilities of the potentially affected species--for accuracy and 
completeness and refer the reader to Sections 3 and 4 of SWFSC's 
application, instead of reprinting the information here. Additional 
information regarding population trends and threats may be found in 
NMFS's Stock Assessment Reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more 
general information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS's website (www.fisheries.noaa.gov/find-species).
    Table 3 lists all species with expected potential for occurrence in 
the specified geographical regions where SWFSC proposes to continue the 
specified activities and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2020). PBR, defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population, is discussed in 
greater detail later in this document (see ``Negligible Impact 
Analysis'').
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. Survey abundance (as compared to stock or species 
abundance) is the total number of individuals estimated within the 
survey area, which may or may not align completely with a stock's 
geographic range as defined in the SARs. These surveys may also extend 
beyond U.S. waters.
    All stocks occurring in the CCE are assessed in either NMFS's U.S. 
Alaska SARs or U.S. Pacific SARs. All values presented in Table 3 are 
the most recent available at the time of writing and are available in 
the 2018 SARs (Carretta et al., 2019; Muto et al., 2019) or draft 2019 
SARs (available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports). 
Antarctic stocks are not generally defined by NMFS, and information 
relating to species occurring in the AMLR is lacking relative to those 
occurring in the CCE. For species occurring in AMLR, we provide 
International Union for the Conservation of Nature (IUCN) status. The 
IUCN systematically assesses the relative risk of extinction for 
terrestrial and aquatic plant and animal species via a classification 
scheme using five designations, including three threatened categories 
(Critically Endangered, Endangered, and Vulnerable) and two non-
threatened categories (Near Threatened and Least Concern) 
(www.iucnredlist.org/; accessed June 22, 2020). These assessments are 
generally made relative to the species' global status, and therefore 
may have limited applicability when marine mammal stocks are defined 
because we analyze the potential population-level effects of the 
specified activity to the relevant stock. However, where stocks are not 
defined, IUCN status can provide a useful reference.

California Current

    In the CCE, 33 species (with 40 managed stocks) are considered to 
have the potential to co-occur with SWFSC activities. Species that 
could potentially occur in the research area but are not expected to 
have the potential for

[[Page 53614]]

interaction with SWFSC research gear or that are not likely to be 
harassed by SWFSC's use of active acoustic devices are described 
briefly but omitted from further analysis. These include extralimital 
species, which are species that do not normally occur in a given area 
but for which there are one or more occurrence records that are 
considered beyond the normal range of the species. Species considered 
to be extralimital here include the North Pacific right whale 
(Eubalaena japonica) and the Bryde's whale (Balaenoptera edeni brydei). 
In addition, the sea otter is found in coastal waters, with the 
southern sea otter (Enhydra lutris nereis) found in California and the 
northern (or eastern) sea otter (E. l. kenyoni; Washington stock only) 
found in Washington. However, sea otters are managed by the U.S. Fish 
and Wildlife Service and are not considered further in this document. 
Most survey activity occurs offshore and is therefore less likely to 
interact with coastal species such as harbor porpoise, the coastal 
stock of bottlenose dolphin, or gray whales (during the northbound 
migration), although these species are considered further in this 
document. SWFSC does not conduct research activities in the inland 
waters of Washington. Therefore, stocks occurring solely in those 
waters (i.e., harbor porpoise and harbor seal) are not addressed 
herein.
    Two populations of gray whales are recognized, eastern and western 
North Pacific (ENP and WNP). WNP whales are known to feed in the 
Okhotsk Sea and off Kamchatka before migrating south to poorly known 
wintering grounds, possibly in the South China Sea. The two populations 
have historically been considered geographically isolated from each 
other; however, data from satellite-tracked whales indicate that there 
is some overlap between the stocks. Two WNP whales were tracked from 
Russian foraging areas along the Pacific rim to Baja California (Mate 
et al., 2011), and, in one case where the satellite tag remained 
attached to the whale for a longer period, a WNP whale was tracked from 
Russia to Mexico and back again (IWC, 2012). Between 22-24 WNP whales 
are known to have occurred in the eastern Pacific through comparisons 
of ENP and WNP photo-identification catalogs (IWC, 2012; Weller et al., 
2011; Burdin et al., 2011). Urban et al. (2013) compared catalogs of 
photo-identified individuals from Mexico with photographs of whales off 
Russia and reported a total of 21 matches. Therefore, a portion of the 
WNP population is assumed to migrate, at least in some years, to the 
eastern Pacific during the winter breeding season.
    However, the SWFSC does not believe that any gray whale (WNP or 
ENP) would be likely to interact with its research gear, as it is 
extremely unlikely that a gray whale in close proximity to SWFSC 
research activity would be one of the few WNP whales that have been 
documented in the eastern Pacific. The likelihood that a WNP whale 
would interact with SWFSC research gear or be exposed to elevated 
levels of sound due to the use of active acoustic sources is 
insignificant and discountable, and WNP gray whales are omitted from 
further analysis.

                           Table 3--Marine Mammals Potentially Present in the Vicinity of SWFSC Research Activities in the CCE
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific    -; N                26,960 (0.05; 25,849;         801        139
                                                                (ENP).                                       2016).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae   California/Oregon/       E/D; Y              2,900 (0.03; 2,784;      \9\ 16.7     >=42.1
                                       kuzira.                  Washington (CA/OR/WA).                       2014).
    Minke whale.....................  Balaenoptera             CA/OR/WA...............  -; N                636 (0.72; 369; 2014).        3.5      >=1.3
                                       acutorostrata scammoni.
    Sei whale.......................  B. borealis borealis...  ENP....................  E/D; Y              519 (0.4; 374; 2014)..       0.75      >=0.2
    Fin whale.......................  B. physalus physalus...  CA/OR/WA...............  E/D; Y              9,029 (0.12; 8,127;            81     >=43.5
                                                                                                             2014).
    Blue whale......................  B. musculus musculus...  ENP....................  E/D; Y              1,496 (0.44; 1,050;       \9\ 1.2     >=19.4
                                                                                                             2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  CA/OR/WA...............  E/D; Y              1,997 (0.57; 1,270;           2.5        0.4
                                                                                                             2014).
Family Kogiidae:
    Pygmy sperm whale...............  Kogia breviceps........  CA/OR/WA...............  -; N                4,111 (1.12; 1,924;          19.2          0
                                                                                                             2014).
    Dwarf sperm whale...............  K. sima................  CA/OR/WA \5\...........  -; N                Unknown...............        n/a          0
Family Ziphiidae (beaked whales):
    Cuvier's beaked whale...........  Ziphius cavirostris....  CA/OR/WA...............  -; N                3,274 (0.67; 2,059;            21       <0.1
                                                                                                             2014).
    Baird's beaked whale............  Berardius bairdii......  CA/OR/WA...............  -; N                2,697 (0.6; 1,633;             16          0
                                                                                                             2014).
    Hubbs' beaked whale.............  Mesoplodon carlhubbsi..  CA/OR/WA \6\...........  -; N                3,044 (0.54; 1,967;            20        0.1
                                                                                                             2014).
    Blainville's beaked whale.......  M. densirostris........
    Ginkgo-toothed beaked whale.....  M. ginkgodens..........
    Perrin's beaked whale...........  M. perrini.............
    Lesser (pygmy) beaked whale.....  M. peruvianus..........
    Stejneger's beaked whale........  M. stejnegeri..........
Family Delphinidae:
    Common bottlenose dolphin.......  Tursiops truncatus       CA/OR/WA Offshore......  -; N                1,924 (0.54; 1,255;            11      >=1.6
                                       truncatus.                                                            2014).
                                      .......................  California Coastal.....  -; N                453 (0.06; 346; 2011).        2.7      >=2.0
    Striped dolphin.................  Stenella coeruleoalba..  CA/OR/WA...............  -; N                29,211 (0.2; 24,782;          238      >=0.8
                                                                                                             2014).
    ENP long-beaked common dolphin..  Delphinus delphis        California.............  -; N                101,305 (0.49; 68,432;        657     >=35.4
                                       bairdii.                                                              2014).
    Common dolphin..................  D. d. delphis..........  CA/OR/WA...............  -; N                969,861 (0.17;              8,393       >=40
                                                                                                             839,325; 2014).

[[Page 53615]]

 
    Pacific white-sided dolphin.....  Lagenorhynchus           CA/OR/WA...............  -; N                26,814 (0.28; 21,195;         191        7.5
                                       obliquidens.                                                          2014).
    Northern right whale dolphin....  Lissodelphis borealis..  CA/OR/WA...............  -; N                26,556 (0.44; 18,608;         179        3.8
                                                                                                             2014).
    Risso's dolphin.................  Grampus griseus........  CA/OR/WA...............  -; N                6,336 (0.32; 4,817;            46      >=3.7
                                                                                                             2014).
    Killer whale....................  Orcinus orca \4\.......  West Coast Transient     -; N                243 (n/a; 2009).......        2.4          0
                                                                \7\.
                                      .......................  ENP Offshore...........  -; N                300 (0.1; 276; 2012)..        2.8          0
                                      .......................  ENP Southern Resident..  E/D; Y              75 (n/a; 2018)........       0.13          0
    Short-finned pilot whale........  Globicephala             CA/OR/WA...............  -; N                836 (0.79; 466; 2014).        4.5        1.2
                                       macrorhynchus.
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena        Morro Bay..............  -; N                2,917 (0.41; 2,102;            21      >=0.6
                                       vomerina.                                                             2012).
                                      .......................  Monterey Bay...........  -; N                3,715 (0.51; 2,480;            25          0
                                                                                                             2011).
                                      .......................  San Francisco-Russian    -; N                9,886 (0.51; 6,625;            66          0
                                                                River.                                       2011).
                                      .......................  Northern CA/Southern OR  -; N                35,769 (0.52; 23,749;         475      >=0.6
                                                                                                             2011).
                                      .......................  Northern OR/WA Coast...  -; N                21,487 (0.44; 15,123;         151        >=3
                                                                                                             2011).
    Dall's porpoise.................  Phocoenoides dalli       CA/OR/WA...............  -; N                25,750 (0.45; 17,954;         172        0.3
                                       dalli.                                                                2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    Guadalupe fur seal..............  Arctocephalus philippii  Mexico to California...  T/D; Y              34,187 (n/a; 31,019;        1,062       \10\
                                       townsendi.                                                            2013).                                >=3.8
    Northern fur seal...............  Callorhinus ursinus....  Pribilof Islands/        D; Y                620,660 (0.2; 525,333;     11,295        399
                                                                Eastern Pacific.                             2016).
                                      .......................  California.............  -; N                14,050 (n/a; 7,524;           451        1.8
                                                                                                             2013).
    California sea lion.............  Zalophus californianus.  United States..........  -; N                257,606 (n/a; 233,515;     14,011      >=321
                                                                                                             2014).
    Steller sea lion................  Eumetopias jubatus       Eastern U.S............  -; N                43,201 (n/a; 2017)....      2,592        113
                                       monteriensis.
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina           California.............  -; N                30,968 (n/a; 27,348;        1,641         43
                                       richardii.                                                            2012).
                                      .......................  OR/WA Coast \8\........  -; N                24,732 (0.12; 22,380;         n/a       10.6
                                                                                                             1999).
    Northern elephant seal..........  Mirounga angustirostris  California Breeding....  -; N                179,000 (n/a; 81,368;       4,882        8.8
                                                                                                             2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is
  coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For most stocks of killer whales, the
  abundance values represent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated
  CV. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction
  factor derived from knowledge of the species' (or similar species') life history to arrive at a best abundance estimate; therefore, there is no
  associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum
  value. All M/SI values are as presented in the draft 2019 SARs.
\4\ Transient and resident killer whales are considered unnamed subspecies (Committee on Taxonomy, 2020).
\5\ No information is available to estimate the population size of dwarf sperm whales off the U.S. West Coast, as no sightings of this species have been
  documented despite numerous vessel surveys of this region (Carretta et al., 2017). Dwarf and pygmy sperm whales are difficult to differentiate at sea
  but, based on previous sighting surveys and historical stranding data, it is thought that recent ship survey sightings were of pygmy sperm whales.
\6\ The six species of Mesoplodont beaked whales occurring in the CA/OR/WA region are managed as a single stock due to the rarity of records and the
  difficulty in distinguishing these animals to species in the field. Based on bycatch and stranding records, it appears that M. carlhubbsi is the most
  commonly encountered of these species (Carretta et al., 2008; Moore and Barlow, 2013).
\7\ The abundance estimate for this stock includes only animals from the ``inner coast'' population occurring in inside waters of southeastern Alaska,
  British Columbia, and Washington--excluding animals from the ``outer coast'' subpopulation, including animals from California--and therefore should be
  considered a minimum count. For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now
  considered outdated, was 354.
\8\ Abundance estimate for this stock is not considered current. PBR is therefore considered undetermined, as there is no current minimum abundance
  estimate for use in calculation. We nevertheless present the most recent abundance estimates, as it represents the best available information for use
  in this document.
\9\ These stocks are known to spend a portion of their time outside the U.S. EEZ. Therefore, the PBR presented here is the allocation for U.S. waters
  only and is a portion of the total. The total PBR for blue whales is 2.1 (7/12 allocation for U.S. waters), and the total for CA/OR/WA humpback whales
  is 33.4 (one half allocation for U.S. waters). Annual M/SI presented for these species is for U.S. waters only.
\10\ This represents annual M/SI in U.S. waters. However, the vast majority of M/SI for this stock--the level of which is unknown--would likely occur in
  Mexican waters. There is insufficient information to determine whether mortality in Mexico exceeds the PBR for this stock, but given the observed
  growth of the population over time, this is unlikely (Carretta et al., 2019).

    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 3. 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

[[Page 53616]]

(endangered). According to Wade et al. (2016), whales off of Washington 
are most likely to be from the Hawaii DPS (52.9 percent), but are 
almost equally likely to be from the Mexico DPS (41.9 percent), and 
could also be from the Central America DPS (14.7 percent). Off of 
Oregon and California, whales are most likely to be from the Mexico DPS 
(89.6 percent), with a 19.7 percent probability of an encountered whale 
being from the Central America DPS. Note that these probabilities 
reflect the upper limit of the 95 percent confidence interval of the 
probability of occurrence; therefore, numbers may not sum to 100 
percent for a given area.
    Take Reduction Planning--Take reduction plans are designed to help 
recover and prevent the depletion of strategic marine mammal stocks 
that interact with certain U.S. commercial fisheries, as required by 
Section 118 of the MMPA. The immediate goal of a take reduction plan is 
to reduce, within six months of its implementation, the M/SI of marine 
mammals incidental to commercial fishing to less than the PBR level. 
The long-term goal is to reduce, within five years of its 
implementation, the M/SI of marine mammals incidental to commercial 
fishing to insignificant levels, approaching a zero serious injury and 
mortality rate, taking into account the economics of the fishery, the 
availability of existing technology, and existing state or regional 
fishery management plans. Take reduction teams are convened to develop 
these plans.
    For marine mammals in the CCE, there is currently one take 
reduction plan in effect (Pacific Offshore Cetacean Take Reduction 
Plan). The goal of this plan is to reduce M/SI of several marine mammal 
stocks incidental to the California thresher shark/swordfish drift 
gillnet fishery (CA DGN). A team was convened in 1996 and a final plan 
produced in 1997 (62 FR 51805; October 3, 1997). Marine mammal stocks 
of concern initially included the California, Oregon, and Washington 
stocks for all CCE beaked whales, short-finned pilot whales, pygmy 
sperm whales, sperm whales, and humpback whales. The most recent five-
year averages of M/SI for all stocks except the humpback whale are 
below PBR. For humpback whales, the majority of total annual M/SI is 
attributed to other fisheries--notably pot/trap fisheries--and ship 
strikes, with no observed M/SI in the DGN fishery from 2013-2017, and 
estimated mean annual M/SI in the fishery at <0.1 (CV = 1.9) over the 
same period. The most recent observed take of a sperm whale in the DGN 
fishery was in 2010, though the mean annual estimated M/SI attributed 
to the fishery over the period from 2008-2017 is 0.56 (CV = 0.78). Two 
short-finned pilot whales were observed taken in the DGN fishery in 
2014, leading to a mean annual M/SI estimate of 1.2 (CV = 0.39) for the 
fishery. None of the other species were observed taken in the fishery 
in the most recent five-year period for which data are available, 
though some have estimated mean annual M/SI values for the fishery that 
are > 0. More information is available online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/pacific-offshore-cetacean-take-reduction-plan. Of the stocks of concern, the 
SWFSC has requested the authorization of incidental M/SI for the short-
finned pilot whale only (see ``Estimated Take by Incidental 
Harassment'' later in this document). The SWFSC does not use drift 
gillnets in its fisheries research program; therefore, take reduction 
measures applicable to the CA DGN fisheries are not relevant to the 
SWFSC.
    Unusual Mortality Events (UME)--A UME is defined under the MMPA as 
a stranding that is unexpected; involves a significant die-off of any 
marine mammal population; and demands immediate response. From 1991 to 
the present, there have been 16 formally recognized UMEs on the U.S. 
West Coast involving species under NMFS' jurisdiction. The only 
currently ongoing investigations involve Guadalupe fur seals and gray 
whales along the west coast.
    Increased strandings of Guadalupe fur seals (up to eight times the 
historical average) have occurred along the entire coast of California 
and extending into Oregon and Washington. Increased strandings in 
California were reported beginning in January 2015 and peaked from 
April through June 2015, but have remained well above average. 
Strandings in Oregon and Washington became elevated starting in 2019 
and are five times higher than the historical average. Findings from 
the majority of stranded animals include malnutrition with secondary 
bacterial and parasitic infections, and the UME has been attributed to 
ecological factors. For more information, please visit: 
www.fisheries.noaa.gov/national/marine-life-distress/2015-2020-guadalupe-fur-seal-unusual-mortality-event-california.
    Since January 1, 2019, elevated gray whale strandings have occurred 
along the west coast of North America from Mexico through Alaska. As of 
June 5, 2020, there have been a total of 340 whales reported in the 
event, with approximately 168 dead whales in Mexico, 159 whales in the 
United States (53 in California; 9 in Oregon; 42 in Washington, 55 in 
Alaska), and 13 whales in British Columbia, Canada. For the United 
States, the historical 18-year 5-month average (Jan-May) is 14.8 whales 
for the four states for this same time-period. Several dead whales have 
been emaciated with moderate to heavy whale lice (cyamid) loads. 
Necropsies have been conducted on a subset of whales with additional 
findings of vessel strike in three whales and entanglement in one 
whale. In Mexico, 50-55 percent of the free-ranging whales observed in 
the lagoons in winter have been reported as ``skinny'' compared to the 
annual average of 10-12 percent ``skinny'' whales normally seen. The 
cause of the UME is as yet undetermined. For more information, please 
visit: www.fisheries.noaa.gov/national/marine-life-distress/2019-2020-gray-whale-unusual-mortality-event-along-west-coast-and.
    Additional UMEs in the past ten years include those involving 
California sea lions (2013-2016; ecological factors) and large whales 
in Alaska and British Columbia (2015-2016; undetermined cause with 
secondary ecological factors). For more information on UMEs, please 
visit: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events.

Antarctic

    The SWFSC's Antarctic Research Area (ARA) comprises a portion of 
the AMLR ecosystem. In the ARA, seventeen species are considered to 
have the potential to co-occur with SWFSC activities. Marine mammals in 
the AMLR do not constitute stocks under U.S. jurisdiction; therefore, 
the stocks are not managed by NMFS, there are no SARs, and 
substantially less information is available for these species in 
relation to the stocks or populations and their occurrence in the ARA 
than is available for CCE stocks (e.g., PBR is not calculated for AMLR 
stocks, and strategic designations are not made). Extralimital species 
in the ARA include the pygmy right whale (Caperea marginata), sei 
whale, Cuvier's beaked whale, Shepherd's beaked whale (Tasmacetus 
shepherdi), Gray's beaked whale (Mesoplodon grayi), and strap-toothed 
beaked whale (M. layardii), which have distributions that only border 
the northernmost edge of the ARA. The Ross seal (Ommatophoca rossii) is 
also considered extralimital to the ARA due to its preference for dense 
pack ice, which is not typically present in the ARA.

[[Page 53617]]



      Table 5--Marine Mammals Potentially Present in the Vicinity of SWFSC Research Activities in the AMLR
----------------------------------------------------------------------------------------------------------------
                                                                              ESA/MMPA/IUCN      Abundance (CV)
          Common name             Scientific name          Stock \2\            status \3\            \4\
----------------------------------------------------------------------------------------------------------------
                      Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Balaenidae (right
 whales):
    Southern right whale.......  Eubalaena          ......................  E/D/LC...........  1,755 (0.62) \5\
                                  australis.
Family Balaenopteridae
 (rorquals):
    Humpback whale.............  Megaptera          ......................  E/D/LC...........  9,484 (0.28) \5\
                                  novaeangliae
                                  australis.
    Antarctic minke whale......  Balaenoptera       ......................  -/NT.............  18,125 (0.28) \5\
                                  bonaerensis.
    Fin whale..................  B. physalus quoyi  ......................  E/D/VU...........  4,672 (0.42) \5\
    Blue whale.................  B. musculus        ......................  E/D/EN...........  1,700 (95% CI 860-
                                  intermedia.                                                   2,900) \6\
----------------------------------------------------------------------------------------------------------------
                        Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
----------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale................  Physeter           ......................  E/D/VU...........  12,069 (0.17) \7\
                                  macrocephalus.
Family Ziphiidae (beaked
 whales):
    Arnoux' beaked whale.......  Berardius arnuxii  ......................  -/DD.............  Unknown
    Southern bottlenose whale..  Hyperoodon         ......................  -/LC.............  53,743 (0.12) \8\
                                  planifrons.
Family Delphinidae:
    Hourglass dolphin..........  Lagenorhynchus     ......................  -/LC.............  144,300 (0.17)
                                  cruciger.                                                     \9\
    Killer whale...............  Orcinus orca \1\.  ......................  -/DD.............  24,790 (0.23) \8\
    Long-finned pilot whale....  Globicephala       ......................  -/LC.............  200,000 (0.35)
                                  melas edwardii.                                               \9\
Family Phocoenidae (porpoises):
    Spectacled porpoise........  Phocoena           ......................  -/LC.............  Unknown
                                  dioptrica.
----------------------------------------------------------------------------------------------------------------
                                     Order Carnivora--Superfamily Pinnipedia
----------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals
 and sea lions):
    Antarctic fur seal.........  Arctocephalus      South Georgia           -/LC.............  2,700,000 \10\
                                  gazella.
Family Phocidae (earless
 seals):
    Southern elephant seal.....  Mirounga leonina.  South Georgia           -/LC.............  401,572 \11\
    Weddell seal...............  Leptonychotes      ......................  -/LC.............  500,000-1,000,000
                                  weddellii.                                                    \12\
    Crabeater seal.............  Lobodon            ......................  -/LC.............  5,000,000-10,000,
                                  carcinophaga.                                                 000 \12\
    Leopard seal...............  Hydrurga leptonyx  ......................  -/LC.............  222,000-440,000
                                                                                                \12\
----------------------------------------------------------------------------------------------------------------
\1\ Three distinct forms of killer whale have been described from Antarctic waters; referred to as types A, B,
  and C, they are purported prey specialists on Antarctic minke whales, seals, and fish, respectively (Pitman
  and Ensor, 2003; Pitman et al., 2010).
\2\ For most species in the AMLR, stocks are not delineated and entries refer generally to individuals of the
  species occurring in the research area.
\3\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-)
  indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Any species
  listed under the ESA is automatically designated under the MMPA as depleted. IUCN status: Endangered (EN),
  Vulnerable (VU), Near Threatened (NT), Least Concern (LC), Data Deficient (DD).
\4\ CV is coefficient of variation. All abundance estimates, except for those from Reilly et al. (2004) (right,
  humpback, minke, and fin whales), are for entire Southern Ocean (i.e., waters south of 60[deg]S) and not the
  smaller area comprising the SWFSC research area.
\5\ Abundance estimates reported in Reilly et al. (2004) for the Commission for the Conservation of Antarctic
  Marine Living Resources (CCAMLR) survey area from 2000. Surveys include Antarctic Peninsula (473,300 km\2\)
  and Scotia Sea (1,109,800 km\2\) strata, which correspond roughly to ARA, as reported by Hewitt et al. (2004).
\6\ Southern Ocean abundance estimate (Branch et al., 2007). CI is confidence interval.
\7\ Southern Ocean abundance estimate (IWC, 2001 in Whitehead, 2002).
\8\ Southern Ocean abundance estimate from circumpolar surveys covering 68 percent of waters south of 60[deg]S
  from 1991-98 (Branch and Butterworth, 2001).
\9\ Southern Ocean abundance estimate derived from surveys conducted from 1976-88 (Kasamatsu and Joyce, 1995).
\10\ South Georgia abundance estimate; likely >95 percent of range-wide abundance (Forcada and Staniland, 2009).
  Genetic evidence shows two distinct population regions, likely descended from surviving post-sealing
  populations at South Georgia, Bouvet[oslash]ya, and Kerguelen Islands (Wynen et al., 2000; Forcada and
  Staniland, 2009). Individuals from the South Georgia population (including breeding populations at the South
  Orkney and South Shetland Islands, which are within the ARA) are likely to occur in the ARA.
\11\ Four genetically distinct populations are recognized: The Peninsula Vald[eacute]s population in Argentina,
  the South Georgia population in the South Atlantic Ocean, the Kerguelen population in the South Indian Ocean
  and the Macquarie population in the South Pacific Ocean (Slade et al., 1998; Hoelzel et al., 2001). Animals
  occurring in ARA are likely to belong to South Georgia population, which includes subpopulations at South
  Georgia Island (>99% of population) and at the South Orkney and South Shetland Islands; South Georgia
  population abundance estimate from 2001 (McMahon et al., 2005).
\12\ Range-wide abundance estimates (Thomas and Terhune, 2009; Bengtson, 2009; Rogers, 2009).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans).
    Subsequently, NMFS (2018) described generalized hearing ranges for 
these marine mammal hearing groups. Generalized hearing ranges were 
chosen based on the approximately 65 dB threshold from the normalized 
composite audiograms, with an exception for lower limits for low-
frequency cetaceans where the result was deemed to be biologically 
implausible and the lower bound from Southall et al. (2007) retained. 
Marine mammal hearing groups and their associated hearing ranges are 
provided in Table 5.

[[Page 53618]]



           Table 5--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen         7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,      150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true          275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Within the CCE, 33 marine mammal species (27 cetacean and six pinniped 
[four otariid and two phocid] species) have the potential to co-occur 
with SWFSC research activities. Please refer to Table 3. Of the 27 
cetacean species that may be present, six are classified as low-
frequency cetaceans (i.e., all mysticete species), seventeen are 
classified as mid-frequency cetaceans (i.e., all delphinid and ziphiid 
species and the sperm whale), and four are classified as high-frequency 
cetaceans (i.e., porpoises and Kogia spp.). Within the AMLR, seventeen 
marine mammal species (twelve cetacean and five pinniped [one otariid 
and four phocid] species) have the potential to co-occur with SWFSC 
research activities. Please refer to Table 4. Of the twelve cetacean 
species that may be present, five are classified as low-frequency 
cetaceans (i.e., all mysticete species), five are classified as mid-
frequency cetaceans (i.e., all delphinid and ziphiid species [excluding 
the hourglass dolphin] and the sperm whale), and two are classified as 
high-frequency cetaceans (i.e., the hourglass dolphin and spectacled 
porpoise).

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

    Detailed descriptions of the potential effects of the various 
elements of the SWFSC's specified activity on marine mammals and their 
habitat were provided in association with the 2015 SWFSC rulemaking (80 
FR 8166; February 15, 2015). Additionally, detailed descriptions of the 
potential effects of similar specified activities have also been 
provided in other Federal Register notices (e.g., 81 FR 38516; 83 FR 
37638; 84 FR 6576), and section 7 of SWFSC's application provides a 
discussion of the potential effects of their specified activity, which 
we have reviewed for accuracy and completeness. No significant new 
information is available, and these discussions provide the necessary 
adequate and relevant information regarding the potential effects of 
SWFSC's specified activity on marine mammals and their habitat. 
Therefore, we refer the reader to these documents rather than repeating 
the information here. The referenced information includes a summary and 
discussion of the ways that components of the specified activity (e.g., 
gear deployment, use of active acoustic sources, visual disturbance) 
may impact marine mammals and their habitat.
    As stated previously, the use of certain research gears, including 
trawl nets, hook and line gear, and purse seine nets, has the potential 
to result in interaction with marine mammals. In the event of a marine 
mammal interaction with research gear, injury, serious injury, or 
mortality may result from entanglement or hooking. Exposure to sound 
through the use of active acoustic systems for research purposes may 
result in Level B harassment. However, as detailed in the previously 
referenced discussions, Level A harassment in the form of permanent 
threshold shift (PTS) is extremely unlikely to occur, and we consider 
such effects discountable. Finally, in the Antarctic only, it is 
expected that hauled pinnipeds may be disturbed by approaching 
researchers such that Level B harassment could occur. Ship strike is 
not a reasonably anticipated outcome of SWFSC research activities, 
given the small amount of distance covered by research vessels and 
their relatively slow speed in comparison to commercial shipping 
traffic (i.e., the primary cause of marine mammal vessel strikes).
    With specific reference to Level B harassment that may occur as a 
result of acoustic exposure, we note that the analytical methods from 
the original 2015 analysis are retained here. However, the state of 
science with regard to our understanding of the likely potential 
effects of the use of systems like those used by SWFSC has advanced in 
the preceding five years, as have readily available approaches to 
estimating the acoustic footprints of such sources, with the result 
that we view this analysis as highly conservative. Although more recent 
literature provides documentation of marine mammal responses to the use 
of these and similar acoustic systems (e.g., Cholewiak et al., 2017; 
Quick et al., 2017; Varghese et al., 2020), the described responses do 
not generally comport with the degree of severity that should be 
associated with Level B harassment, as defined by the MMPA. We retain 
the 2015 analytical approach for consistency with existing analyses and 
for purposes of efficiency here, and consider this acceptable because 
the approach provides a conservative estimate of potential incidents of 
Level B harassment. In summary, while we propose to authorize the 
amount of take by Level B harassment indicated in the ``Estimated 
Take'' section, and consider these potential takings at face value in 
our negligible impact analysis, it is uncertain whether use of these 
acoustic systems are likely to cause take at all, much less at the 
estimated levels.
    The ``Estimated Take'' section later in this document includes a 
quantitative analysis of the number of individuals that are expected to 
be taken by this activity. The ``Negligible Impact Analysis and 
Determination'' section considers the potential effects of the 
specified activity, the ``Estimated Take'' section, and the ``Proposed 
Mitigation'' section, to draw conclusions regarding the likely impacts 
of these activities on the reproductive success or survivorship of 
individuals and how those impacts on individuals are likely to impact 
marine mammal species or stocks.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization, which will inform both NMFS's consideration 
of whether the number of takes is ``small'' and the negligible impact 
determination.

[[Page 53619]]

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as: Any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Take of marine mammals incidental to SWFSC research activities 
could occur as a result of (1) injury or mortality due to gear 
interaction in the CCE (Level A harassment, serious injury, or 
mortality); (2) behavioral disturbance resulting from the use of active 
acoustic sources (Level B harassment only); or (3) behavioral 
disturbance of pinnipeds resulting from incidental approach of 
researchers in the Antarctic (Level B harassment only). Below we 
describe how the potential take is estimated.

Estimated Take Due to Gear Interaction

    In order to determine the number of incidental takes requested for 
authorization, SWFSC retained the approach to estimating their 
requested take numbers that was developed in support of the 2015 rule. 
That approach was based on historical incidents of gear interaction and 
on an assessment of which species of marine mammal that have not 
historically been taken might have similar risk of interaction to those 
species that have been taken. In particular, records from the year 
2008--which remains the year with the highest number of gear 
interaction incidents--were used as the basis for generating a 
precautionary, worst-case assessment of potential takes. Reporting from 
2015-19 under the current regulations demonstrates that this approach 
was indeed a precautionary one, as annual numbers of takes have 
remained well below those recorded in 2008, and only one additional 
species that had not historically been taken in SWFSC research gear in 
2015 has subsequently been taken (common dolphin; see Table 6). SWFSC 
has elected to carry forward this precautionary approach to their take 
authorization request in support of this rulemaking, and we incorporate 
it into our proposed rulemaking, as described in further detail below.
    The approach to estimating the number of potential incidents of 
take that could occur through gear interaction first requires 
consideration of SWFSC's record of past such incidents. We then 
consider in addition other species that may have similar 
vulnerabilities to SWFSC trawl and longline gear as those species for 
which we have historical interaction records. Historical interactions 
with research gear are described in Tables 6 and 7, and we anticipate 
that all species that interacted with SWFSC fisheries research gear 
historically could potentially be taken in the future. Available 
records are for the years 2006 through present. All historical SWFSC 
interactions have taken place in the CCE. The locations of incidental 
take events from 2015-2019 are shown in Figure 6-1 of SWFSC's 
application.

                                                    Table 6--Historical Interactions With Trawl Gear
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Number
              Gear \1\                       Survey               Date                 Species             Number killed  released alive       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Midwater trawl.....................  Coastal Pelagic              4/24/2006  Northern fur seal (CA                     1  ..............               1
                                      Species (CPS).                          stock).
Midwater trawl.....................  CPS...................       4/29/2007  Northern fur seal (CA                     1  ..............               1
                                                                              stock).
Midwater trawl \2\.................  Juvenile Rockfish.....       5/30/2007  Northern fur seal (eastern                1  ..............               1
                                                                              Pacific stock).
Midwater trawl.....................  CPS...................       4/18/2008  California sea lion........               1  ..............               1
Midwater trawl.....................  CPS...................       4/21/2008  Pacific white-sided dolphin               1  ..............               1
Midwater trawl.....................  CPS...................       4/26/2008  Pacific white-sided dolphin               2  ..............               2
Midwater trawl.....................  CPS...................       4/27/2008  California sea lion........               1  ..............               1
Midwater trawl.....................  CPS...................       4/27/2008  Northern fur seal (eastern                1  ..............               1
                                                                              Pacific stock).
Midwater trawl \2\.................  Juvenile Rockfish.....       6/15/2008  California sea lion........               1               2               3
Midwater trawl.....................  CPS...................       7/19/2008  Pacific white-sided dolphin               1  ..............               1
Midwater trawl.....................  CPS...................       7/28/2008  California sea lion........               1  ..............               1
Midwater trawl.....................  CPS...................       7/31/2008  Northern fur seal (CA                     1  ..............               1
                                                                              stock).
Midwater trawl.....................  CPS...................        8/3/2008  Northern fur seal (CA                     1  ..............               1
                                                                              stock).
Midwater trawl.....................  CPS...................        8/9/2008  Pacific white-sided dolphin              11  ..............              11
Midwater trawl.....................  CPS...................        8/9/2008  Northern right whale                      6  ..............               6
                                                                              dolphin.
Midwater trawl.....................  CPS...................       8/14/2008  California sea lion........               9  ..............               9
Midwater trawl.....................  CPS...................        5/1/2009  Pacific white-sided dolphin  ..............               3               3
Midwater trawl \2\.................  Juvenile Rockfish.....       5/25/2009  California sea lion........  ..............               1               1
Midwater trawl.....................  CPS...................       4/18/2010  Pacific white-sided dolphin  ..............               1               1
Midwater trawl.....................  CPS...................       4/25/2010  Pacific white-sided dolphin               1  ..............               1
Midwater trawl \2\.................  Juvenile Rockfish.....       9/10/2010  Pacific white-sided dolphin               1  ..............               1
Midwater trawl.....................  CPS...................        4/3/2011  Pacific white-sided dolphin               1  ..............               1
Midwater trawl.....................  Juvenile Salmon.......        9/9/2011  California sea lion........               1  ..............               1
Midwater trawl.....................  Juvenile Salmon.......       9/10/2011  Pacific white-sided dolphin               6  ..............               6
Midwater trawl.....................  CPS...................       6/29/2012  Pacific white-sided dolphin  ..............               1               1
Midwater trawl.....................  CPS...................       8/18/2012  Pacific white-sided dolphin               1  ..............               1
Midwater trawl.....................  CPS...................       8/24/2012  Pacific white-sided dolphin               2  ..............               2
Midwater trawl.....................  CPS...................        8/1/2013  Pacific white-sided dolphin               1               2               3
Midwater trawl.....................  Juvenile Salmon.......       9/14/2013  Pacific white-sided dolphin               3  ..............               3
Midwater trawl \2\.................  Juvenile Rockfish.....        6/1/2014  Pacific white-sided dolphin               1  ..............               1
Surface trawl......................  Sardine-Hake Acoustic        8/26/2015  Pacific white-sided dolphin               1  ..............               1
                                      Trawl.
Surface trawl......................  Juvenile Salmon.......       9/14/2015  California sea lion........  ..............               1               1
Midwater trawl \2\.................  Juvenile Rockfish.....       5/15/2016  Pacific white-sided dolphin               1  ..............               1
Surface trawl......................  CPS...................       7/17/2016  Pacific white-sided dolphin               7               1               8
Midwater trawl \2\.................  Juvenile Rockfish.....       6/14/2018  Pacific white-sided dolphin               1  ..............               1
Midwater trawl \2\.................  Juvenile Rockfish.....       6/21/2018  California sea lion........               1  ..............               1
Midwater trawl.....................  CPS...................       7/24/2018  Pacific white-sided dolphin               1  ..............               1
Midwater trawl.....................  CPS...................       8/27/2018  Pacific white-sided dolphin               1  ..............               1
Surface trawl......................  CCE Survey (CCES).....       6/22/2019  Pacific white-sided dolphin               2  ..............               2
Midwater trawl.....................  CCES..................        8/8/2019  Pacific white-sided dolphin               2  ..............               2
Midwater trawl.....................  CCES..................        8/8/2019  Pacific white-sided dolphin               1  ..............               1

[[Page 53620]]

 
Midwater trawl.....................  CCES..................       8/26/2019  Common dolphin (long-                     1  ..............               1
                                                                              beaked).
----------------------------------------------------------------------------
Total individuals captured (total number of interactions given in            Northern fur seal (6)......               6  ..............               6
 parentheses).                                                               California sea lion (9)....              15               4              19
                                                                             Pacific white-sided dolphin              49               8              57
                                                                              (25).
                                                                             Northern right whale                      6  ..............               6
                                                                              dolphin (1).
                                                                             Common dolphin (1).........               1  ..............               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ All incidents involved use of the NETS Nordic 264 midwater trawl, except as noted below.
\2\ These incidents involved use of the modified-Cobb midwater trawl.


                                                   Table 7--Historical Interactions With Longline Gear
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Number
                 Gear                           Survey                Date               Species           Number killed  released alive       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pelagic longline.....................  Highly Migratory Species        9/6/2008  California sea lion....  ..............               1               1
                                        (HMS).
Pelagic longline.....................  HMS.....................       9/15/2008  California sea lion....  ..............               1               1
Pelagic longline.....................  Thresher Shark..........       9/18/2009  California sea lion....  ..............               1               1
Pelagic longline.....................  HMS.....................       7/27/2010  California sea lion....  ..............               1               1
Pelagic longline.....................  HMS.....................       6/23/2012  California sea lion....  ..............               1               1
Pelagic longline.....................  HMS.....................       7/10/2013  California sea lion....  ..............               1               1
Pelagic longline.....................  HMS.....................        7/2/2014  California sea lion....  ..............               1               1
Pelagic longline.....................  HMS.....................        7/8/2015  California sea lion....               1  ..............               1
Pelagic longline.....................  Thresher Shark..........       9/20/2015  California sea lion....  ..............               1               1
                                                                                                         -----------------------------------------------
    Total............................  ........................  ..............  .......................               1               8               9
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In order to use these historical interaction records as the basis 
for the take estimation process, and because we have no specific 
information to indicate whether any given future interaction might 
result in M/SI versus Level A harassment, we conservatively assume that 
all interactions equate to mortality for these fishing gear 
interactions. The SWFSC has no recorded interactions with any gear 
other than midwater trawl and pelagic longline gear, and we do not 
anticipate any future interactions in any other gears historically used 
by SWFSC, including the bottom trawl gear periodically employed by the 
SWFSC in the AMLR. However, SWFSC has not historically used purse seine 
gear, and we do anticipate that the planned future use of purse seine 
gear in the CCE could present some risk of marine mammal interaction.
    During trawl surveys, SWFSC has recorded interactions with northern 
fur seals (California and eastern Pacific stocks); California sea 
lions; Pacific white-sided dolphins; northern right whale dolphins; and 
common dolphins (long-beaked stock). No northern fur seal has been 
captured since 2008, and northern right whale dolphins have been 
involved in only one incident, also in 2008. Common dolphins have been 
involved in only one incident. Therefore, California sea lions and 
Pacific white-sided dolphins are the species most likely to interact 
with SWFSC trawl gear. For longline gear, only California sea lions 
have been captured.
    Take records from 2008 were used as the basis for estimation of 
potential incidental take in support of the 2015 rule, as this year was 
the worst on record and therefore was assumed to provide a worst-case 
basis for predicting potential future take. Take interactions from 2008 
remain the historical maximum. Therefore, as noted above, the 2015 
analysis is retained here as a potential worst-case scenario for marine 
mammal take in SWFSC gear over the five years considered in this 
proposed rulemaking. In the 2015 analysis, the annual average over the 
most recent five-year period that included 2008 (rounded up to the next 
whole number) was used to estimate the potential annual take level over 
the next five years. A five-year time frame provides enough data to 
adequately capture year-to-year variation in take levels, reflecting 
environmental conditions that may change over time. In order to 
incorporate records from the year 2008, we retain 2008-12 as the five-
year period over which we consider interaction records. Those annual 
averages are 7 Pacific white-sided dolphins, 4 California sea lions, 2 
northern right whale dolphins, and 1 northern fur seal, and the prior 
assumption was that this number could be taken in each of the five 
years (i.e., 35 Pacific white-sided dolphins, 20 California sea lions, 
10 northern right whale dolphins, 5 northern fur seals). These take 
numbers are retained, with the exception of the Pacific white-sided 
dolphin. Historically, the CPS survey has only surveyed in water depths 
>50 m and consequently does not sample the nearshore area, potentially 
under-sampling any nearshore CPS aggregations. The aim of planned 
collaborative research over the next five years is to quantify this 
potential sampling bias by using an industry fishing vessel to extend 
the sampling closer to shore. In order to account for the potential for 
increased interactions with Pacific white-sided dolphins in nearshore 
waters, SWFSC added 1 additional take per year. For the species most 
commonly taken, the maximum number of individuals taken through any one 
interaction was 11 Pacific white-sided dolphins and 9 California sea 
lions. Similarly, the annual average of California sea lions taken in 
longline gear from 2008-12 was 1. Therefore, the assumption is that 5 
California sea lions may be taken in hook and line gear over the next 
five-year period.
    In order to evaluate the potential vulnerability of additional 
species to midwater trawl and pelagic longline gear as part of the take 
estimation process for the 2015 rule, we consulted NMFS' List of 
Fisheries (LOF), which classifies U.S. commercial fisheries into one of 
three categories according to the level of incidental marine mammal M/
SI that is known to occur on an annual basis over the most recent five-
year period (generally) for which data has been analyzed: Category I, 
frequent incidental M/SI; Category II, occasional incidental M/SI; and 
Category III,

[[Page 53621]]

remote likelihood of or no known incidental M/SI.
    Information related to incidental M/SI in relevant commercial 
fisheries is not, however, the sole determinant of whether it may be 
appropriate to authorize take incidental to SWFSC survey operations. A 
number of factors (e.g., species-specific knowledge regarding animal 
behavior, overall abundance in the geographic region, density relative 
to SWFSC survey effort, feeding ecology, propensity to travel in groups 
commonly associated with other species historically taken) were taken 
into account by the SWFSC to determine whether a species may have a 
similar vulnerability to certain types of gear as historically taken 
species. In some cases, we have determined that species without 
documented M/SI may nevertheless be vulnerable to capture in SWFSC 
research gear. Similarly, we have determined that some species groups 
with documented M/SI are not likely to be vulnerable to capture in 
SWFSC gear.
    This review led to our inference that common dolphin, Risso's 
dolphin, Dall's porpoise, Steller sea lion, harbor seal, and northern 
elephant seal could have risk of capture in midwater trawl gear given 
the demonstrated risk of capture in commercial fishing gear that is 
similar to the gear used by SWFSC. In addition, as a result of presumed 
similarities to Pacific white-sided dolphin or California sea lion or 
to other species for which there are recorded interactions in similar 
commercial fishing gear, SWFSC determined that there was risk of 
capture for striped dolphin, bottlenose dolphin, and harbor porpoise 
despite a lack of relevant LOF records.
    The LOF review similarly led to our inference that Kogia spp., 
bottlenose dolphin, common dolphin, striped dolphin, Risso's dolphin, 
and short-finned pilot whale could have risk of capture in pelagic 
longline gear given the demonstrated risk of capture in commercial 
fishing gear that is similar to the gear used by SWFSC. We note that, 
due to the expected distribution of longline sampling effort in 
offshore waters, no take of coastal bottlenose dolphins in longline 
gear is expected. In addition, as a result of presumed similarities to 
California sea lion or to other species for which there are recorded 
interactions in similar commercial fishing gear, SWFSC determined that 
there was risk of capture for Steller sea lion despite a lack of 
relevant LOF records.
    As noted above, the worst-case single interactions with trawl gear 
for the two most commonly taken species (Pacific white-sided dolphin 
and California sea lion) involved 11 and 9 individuals, respectively. 
For species deemed by SWFSC to have a similar risk profile as these two 
species, these numbers were taken to represent the potential total take 
over the five-year period. Use of these numbers is sufficient to 
appropriately analyze either of two scenarios: (1) More frequent 
interactions with a lesser number of individuals; or (2) a single, 
worst-case interaction. For trawl gear, species deemed to have a 
similar risk profile as the Pacific white-sided dolphin include the 
Risso's dolphin, bottlenose dolphin, striped dolphin, and common 
dolphins. (Note that the 11 takes proposed for authorization for 
bottlenose dolphin in trawl gear are split across stocks based on the 
spatial distribution of SWFSC trawl survey effort; 8 takes are proposed 
for the offshore stock and 3 takes for the coastal stock.) Species 
deemed to have a similar risk profile as the California sea lion 
include the Steller sea lion and harbor seal. The remainder of species 
determined to be at risk of potential interaction with trawl gear are 
expected to have a relatively lower risk profile and, therefore, the 
expected potential take is one per year, or five over the five-year 
period. Note that a common dolphin has subsequently been captured in 
SWFSC trawl gear. However, we retain the original approach, which 
yields a five-year take estimate of 11 animals, versus the approach for 
historically captured species, which would produce a rounded annual 
average of 1 and, therefore, a five-year estimate of 5.
    For hook and line gear, no species is expected to have a similar 
risk profile as the California sea lion and, therefore, the expected 
potential take for all other cetacean species is two over the five-year 
period, with the exception of bottlenose dolphin, for which only one 
take over five years is requested. Although take due to use of deep-set 
buoy gear is generally considered unlikely, SWFSC increased their take 
request for most cetacean species over the 2015 request (from 1 to 2 
over five years) due to the potential that their use of this gear in 
cetacean habitat could lead to an increased risk of interaction 
compared with only their use of typical pelagic longline gear.
    Regarding potential interactions with purse seine gear, we adopt 
the analysis that was developed in support of a similar incidental take 
rulemaking requested by NMFS' Northwest Fisheries Science Center 
(NWFSC) (83 FR 36370; July 27, 2018). Unlike SWFSC, NWFSC has 
historically used purse seine gear and similarly operates in the CCE. 
NWFSC has not had any historical interactions with purse seine gear. 
Therefore, we followed a similar approach as described above, in which 
the LOF was consulted and assumptions regarding species that may be 
vulnerable to interactions with the gear developed. Species with 
presumed risk of interaction with purse seine gear, based on LOF 
records, include common dolphins, harbor seal, and California sea lion. 
In addition, despite a lack of relevant LOF records, NWFSC deemed the 
following species as having risk of potential interaction with purse 
seine gear: Dall's porpoise, Pacific white-sided dolphin, Risso's 
dolphin, northern right whale dolphin, Steller sea lion, and harbor 
porpoise. SWFSC reviewed the assumptions made by NWFSC and has 
concurred and adopted the same assumptions in support of their 
requested take authorization. SWFSC additionally reviews records of 
marine mammal interactions with commercial purse seines in section 
6.2.2 of their application. For most species, the risk of interaction 
is expected to be relatively low and, therefore, SWFSC has requested 
authorization of one take per potentially affected stock over the five-
year period. However, based on the greater number of recorded 
interactions with purse seine gear for California sea lions and harbor 
seals, SWFSC has requested 5 takes for each species over the five-year 
period.
    We have reviewed subsequent LOFs and determined that there are no 
new records that would change the assumptions regarding potential 
vulnerability to gear interaction described above. For a summation of 
the LOF records discussed above for trawl and longline gear, please see 
Table 13 (80 FR 8166) and Table 6 (81 FR 38516). The final 2020 LOF was 
published on April 16, 2020 (85 FR 21079), and more information about 
the LOF is available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries.
    It is also possible that a captured animal may not be able to be 
identified to species with certainty. Certain pinnipeds and small 
cetaceans are difficult to differentiate at sea, especially in low-
light situations or when a quick release is necessary. For example, a 
captured delphinid that is struggling in the net may escape or be freed 
before positive identification is made. Therefore, the SWFSC has 
requested the authorization of incidental take in trawl gear for one 
unidentified pinniped and one unidentified small cetacean, and 
additionally one take of unidentified

[[Page 53622]]

pinnipeds in both purse seine and longline gear, over the course of the 
five-year period of proposed authorization. Table 8 summarizes the 
total proposed M/SI take authorization due to gear interaction in the 
CCE.

                  Table 8--Total Estimated Take Due to Gear Interaction in the CCE, 2020-25 \1\
----------------------------------------------------------------------------------------------------------------
                                                   Estimated 5-    Estimated 5-    Estimated 5-
                     Species                        year total,     year total,     year total,        Total
                                                       trawl       hook and line    purse seine
----------------------------------------------------------------------------------------------------------------
Kogia spp. \2\..................................  ..............               2  ..............               2
Bottlenose dolphin (CA/OR/WA offshore) \3\......               8               1  ..............               9
Bottlenose dolphin (CA coastal) \3\.............               3  ..............  ..............               3
Striped dolphin.................................              11               2               1              14
Common dolphin (short-beaked)...................              11               2               1              14
Common dolphin (long-beaked)....................              11               2               1              14
Pacific white-sided dolphin.....................              40  ..............               1              41
Northern right whale dolphin....................              10  ..............               1              11
Risso's dolphin.................................              11               2               1              14
Short-finned pilot whale........................  ..............               2  ..............               2
Harbor porpoise \4\.............................               5  ..............               1               6
Dall's porpoise.................................               5  ..............               1               6
Northern fur seal \5\...........................               5  ..............  ..............               5
California sea lion.............................              20               5               5              30
Steller sea lion................................               9               1  ..............              10
Harbor seal \4\.................................               9  ..............               5              14
Northern elephant seal..........................               5  ..............  ..............               5
Unidentified pinniped...........................               1               1               1               3
Unidentified cetacean...........................               1  ..............  ..............               1
----------------------------------------------------------------------------------------------------------------
\1\ Please preceding text for derivation of take estimates.
\2\ We expect that Kogia spp. taken over the five-year timespan could be either a pygmy or dwarf sperm whale.
\3\ As a species believed to have similar propensity for capture in trawl gear as that demonstrated by the
  Pacific white-sided dolphin, we assume that eleven bottlenose dolphins could be captured over the five-year
  timespan. Total potential take of bottlenose dolphins in trawl gear has been apportioned by stock according to
  typical occurrence of that stock relative to SWFSC survey locations. We assume that the requested take of a
  bottlenose dolphin in longline gear would be from the offshore stock due to the typical location of SWFSC
  longline sampling.
\4\ Incidental take may be of animals from any stock, excluding Washington inland waters stocks.
\5\ Incidental take may be of animals from either the eastern Pacific or California stocks.

    Whales--For large whales (baleen whales and sperm whales), beaked 
whales, and killer whales, observed M/SI is extremely rare for trawl 
gear and, for most of these species, only slightly more common in 
longline gear. Although whale species could become captured or 
entangled in SWFSC gear, the probability of interaction is extremely 
low considering the lower level of effort relative to that of 
commercial fisheries. We believe it extremely unlikely that any large 
whale, beaked whale, or killer whale would be captured or entangled in 
SWFSC research gear.

Estimated Take Due to Acoustic Harassment

    As described previously, we believe it unlikely that SWFSC use of 
active acoustic sources is realistically likely to cause Level B 
harassment of marine mammals. However, per SWFSC request, we 
conservatively assume that, at worst, Level B harassment may result 
from exposure to noise from these sources, and we carry forward the 
analytical approach developed in support of the 2015 rule. At that 
time, in order to quantify the potential for Level B harassment to 
occur, NMFS developed an analytical framework considering 
characteristics of the active acoustic systems, their expected patterns 
of use, and characteristics of the marine mammal species that may 
interact with them. The framework incorporated a number of deliberately 
precautionary, simplifying assumptions, and the resulting exposure 
estimates, which are presumed here to equate to take by Level B 
harassment (as defined by the MMPA), may be seen as an overestimate of 
the potential for such effects to occur as a result of the operation of 
these systems.
    Regarding the potential for Level A harassment in the form of 
permanent threshold shift to occur, the very short duration sounds 
emitted by these sources reduces the likely level of accumulated energy 
an animal is exposed to. An individual would have to remain 
exceptionally close to a sound source for unrealistic lengths of time, 
suggesting the likelihood of injury occurring is exceedingly small. 
Potential Level A harassment is therefore not considered further in 
this analysis.
    The assessment paradigm for active acoustic sources used in SWFSC 
fisheries research is relatively straightforward and has a number of 
key simplifying assumptions. Sound produced by these sources is 
intermittent and, therefore, evaluated against the 160 dB rms criterion 
for Level B harassment by behavioral disturbance. Estimating the number 
of exposures at the specified received level requires several 
determinations:
    (1) A detailed characterization of the acoustic characteristics of 
the effective sound source or sources in operation;
    (2) The operational areas exposed to levels at or above those 
associated with Level B harassment when these sources are in operation;
    (3) A method for quantifying the resulting sound fields around 
these sources; and
    (4) An estimate of the average density for marine mammal species in 
each area of operation.
    We provide a summary of the analytical approach here, but invite 
the reader interested in additional detail to review the detailed 
description provided in support of the 2015 rule (80 FR 8166) as well 
as the detailed description provided in section 6.4.2 of SWFSC's 
application.
    Quantifying the spatial and temporal dimension of the sound 
exposure footprint (or ``swath width'') of the active acoustic devices 
in operation on moving vessels and their relationship to the average 
density of marine mammals enables a quantitative estimate of the number 
of events in which sound levels exceed the relevant threshold. The

[[Page 53623]]

number of potentially harassing exposures is ultimately estimated as 
the product of the volume of water ensonified at 160 dB rms or higher 
(to a maximum depth of 500 m) and the volumetric density of animals 
determined from simple assumptions about their vertical stratification 
in the water column. Specifically, reasonable assumptions based on what 
is known about diving behavior across different marine mammal species 
were made to segregate those that predominately remain in the upper 200 
m of the water column versus those that regularly dive deeper during 
foraging and transit. Because depths range dramatically along the 
margin of the continental slope that define the outer edge of the 
survey areas, but deeper surveyed depths rarely range over 500 m in 
practice, the depth range for determining volumes was set at 500 m for 
deep diving species.
    An initial characterization of the general source parameters for 
the primary active acoustic sources operated by the SWFSC was 
conducted, enabling a full assessment of all sound sources used by the 
SWFSC (see Table 2). This auditing of the active acoustic sources also 
enabled a determination of the predominant sources that, when operated, 
would have sound footprints exceeding those from any other 
simultaneously used sources. These sources were effectively those used 
directly in acoustic propagation modeling to estimate the zones within 
which the 160 dB rms received level would occur.
    Many of these sources can be operated in different modes and with 
different output parameters. In modeling their potential impact areas, 
those features among those given previously in Table 2 (e.g., lowest 
operating frequency) that would lead to the most precautionary estimate 
of maximum received level ranges (i.e., largest ensonified area) were 
used. The effective beam patterns took into account the normal modes in 
which these sources are typically operated. While these signals are 
brief and intermittent, a conservative assumption was taken in ignoring 
the temporal pattern of transmitted pulses in calculating potential 
Level B harassment events. Operating characteristics of each of the 
predominant sound sources were used in the calculation of effective 
line-kilometers and area of exposure for each source in each survey.
    Three predominant sources were identified as having the largest 
potential impact zones during operations, based on their relatively 
lower output frequency, higher output power, and their operational 
pattern of use. These sources are the SX90, EK60/EK80, and ME70 (Table 
2). Estimated effective cross-sectional areas of exposure were 
estimated for each of these sources. In determining the effective line-
kilometers for each of these predominant sources, the operational 
patterns of use relative to one another were further applied to 
determine which source was the predominant one operating at any point 
in time for each survey. When multiple sound sources are used 
simultaneously, the one with the largest potential impact zone in each 
relevant depth strata is considered for use in estimating exposures.
    The cross-sectional area of water ensonified at or above the 160 dB 
rms threshold was calculated using a simple model of sound propagation 
loss, which accounts for the loss of sound energy over increasing 
range. We used a spherical spreading model (where propagation loss = 20 
* log [range]; such that there would be a 6-dB reduction in sound level 
for each doubling of distance from the source), a reasonable 
approximation over the relatively short ranges involved. Spherical 
spreading is a reasonable assumption even in relatively shallow waters 
since, taking into account the beam angle, the reflected energy from 
the seafloor will be much weaker than the direct source and the volume 
influenced by the reflected acoustic energy would be much smaller over 
the relatively short ranges involved. We also accounted for the 
frequency-dependent absorption coefficient and beam pattern of these 
sound sources, which is generally highly directional. The lowest 
frequency was used for systems that are operated over a range of 
frequencies. The vertical extent of this area is calculated for two 
depth strata. These results were applied differentially based on the 
typical vertical stratification of marine mammals.
    Following the determination of effective sound exposure area for 
transmissions considered in two dimensions, the next step was to 
determine the effective volume of water ensonified at or above 160 dB 
rms for the entirety of each survey. For each of the three predominant 
sound sources, the volume of water ensonified is estimated as the 
athwartship cross-sectional area (in square kilometers) of sound at or 
above 160 dB rms multiplied by the total distance traveled by the ship. 
Where different sources operating simultaneously would be predominant 
in each different depth strata, the resulting cross-sectional area 
calculated took this into account. Specifically, for shallow-diving 
species this cross-sectional area was determined for whichever was 
predominant in the shallow stratum, whereas for deeper-diving species 
this area was calculated from the combined effects of the predominant 
source in the shallow stratum and the (sometimes different) source 
predominating in the deep stratum. This creates an effective total 
volume characterizing the area ensonified when each predominant source 
is operated and accounts for the fact that deeper-diving species may 
encounter a complex sound field in different portions of the water 
column.
    The best available information regarding marine mammal occurrence 
in the CCE was used to develop volumetric density values for use in 
calculating estimated exposures. This information was determined 
through review of available information, as indicated through NOAA's 
CetMap catalogue, available online at: cetsound.noaa.gov/cda-index. 
More detail, and the density values used, are provided in section 3 and 
Appendix A of the SWFSC application. For marine mammals occurring in 
the AMLR, no new information is available, and the density values used 
in the 2015 rule are carried forward.
    Estimates of potential incidents of Level B harassment (i.e., 
potential exposure to levels of sound at or exceeding the 160 dB rms 
threshold) are then calculated by using (1) the combined results from 
output characteristics of each source and identification of the 
predominant sources in terms of acoustic output; (2) their relative 
annual usage patterns for each operational area; (3) a source-specific 
determination made of the area of water associated with received sounds 
at the extent of a depth boundary; and (4) determination of a 
biologically-relevant volumetric density of marine mammal species in 
each area. Estimates of Level B harassment by acoustic sources are the 
product of the volume of water ensonified at 160 dB rms or higher for 
the predominant sound source for each relevant survey and the 
volumetric density of animals for each species. Please see Tables 6-12 
and 6-13 in SWFSC's application for relevant information. Take 
estimates proposed for authorization are summarized in Table 11 below.

Estimated Take Due to Physical Disturbance

    Estimated take due to physical disturbance could potentially happen 
in the AMLR only as a result of the unintentional approach of SWFSC 
vessels to pinnipeds hauled out on ice, and would result in no greater 
than Level B harassment. During Antarctic

[[Page 53624]]

ecosystem surveys conducted in the austral winter (i.e., June 1 through 
August 31), it is expected that shipboard activities may result in 
behavioral disturbance of some pinnipeds. It is likely that some 
pinnipeds on ice will move or flush from the haul-out into the water in 
response to the presence or sound of SWFSC survey vessels. Behavioral 
responses may be considered according to the scale shown in Table 9 and 
based on the method developed by Mortenson (1996). We consider 
responses corresponding to Levels 2-3 to constitute Level B harassment.

                                    Table 9--Pinniped Response to Disturbance
----------------------------------------------------------------------------------------------------------------
                Level                      Type of response                        Definition
----------------------------------------------------------------------------------------------------------------
1....................................  Alert..................  Seal head orientation or brief movement in
                                                                 response to disturbance, which may include
                                                                 turning head towards the disturbance, craning
                                                                 head and neck while holding the body rigid in a
                                                                 u-shaped position, changing from a lying to a
                                                                 sitting position, or brief movement of less
                                                                 than twice the animal's body length.
2....................................  Movement...............  Movements away from the source of disturbance,
                                                                 ranging from short withdrawals at least twice
                                                                 the animal's body length to longer retreats
                                                                 over the beach, or if already moving a change
                                                                 of direction of greater than 90 degrees.
3....................................  Flush..................  All retreats (flushes) to the water.
----------------------------------------------------------------------------------------------------------------

    The SWFSC has estimated potential incidents of Level B harassment 
due to physical disturbance (Table 10) using the vessel distance 
traveled (20,846 km) during a typical AMLR survey, an effective strip 
width of 200 m (animals are assumed to react if they are less than 100 
m from the vessel; see below), and the estimated population density for 
each species (see Table 3-2 of SWFSC's application). Although there is 
likely to be variation between individuals and species in reactions to 
a passing research vessel--that is, some animals assumed to react in 
this calculation will not react, and others assumed not to react 
because they are outside the effective strip width may in fact react--
we believe that this approach is a reasonable effort towards accounting 
for this potential source of disturbance and have no information to 
indicate that the approach is biased either negatively or positively. 
SWFSC used an effective strip width of 200 m (i.e., 100 m on either 
side of a passing vessel) to be consistent with the regional marine 
mammal viewing guidelines that NMFS has established for Alaska, which 
restrict approaches to marine mammals to a distance of 100 m or greater 
in order to reduce the potential to cause inadvertent harm. Alaska is 
believed to have the most similar environment to the Antarctic of all 
regions for which NMFS has established viewing guidelines. Each 
estimate is the product of the species-specific density, annual line-
kilometers, and the effective strip-width.

Table 10--Estimated Level B Harassment of Pinnipeds Associated With AMLR
                            Vessel Transects
------------------------------------------------------------------------
                                             Estimated
                 Species                  annual Level B   5-year total
                                            harassment
------------------------------------------------------------------------
Antarctic fur seal......................             417           2,085
Southern elephant seal..................               1               5
Weddell seal............................             225           1,125
Crabeater seal..........................           2,704          13,520
Leopard seal............................              68             340
------------------------------------------------------------------------

Proposed Mitigation

    Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses (``least practicable adverse impact''). NMFS does not 
have a regulatory definition for ``least practicable adverse impact.'' 
However, NMFS's implementing regulations require applicants for 
incidental take authorizations to include information about the 
availability and feasibility (economic and technological) of equipment, 
methods, and manner of conducting such activity or other means of 
effecting the least practicable adverse impact upon the affected 
species or stocks and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, we carefully consider two primary factors:
    (1) The manner in which, and the degree to which, implementation of 
the measure(s) is expected to reduce impacts to marine mammal species 
or stocks, their habitat, and their availability for subsistence uses. 
This analysis will consider such things as the nature of the potential 
adverse impact (such as likelihood, scope, and range), the likelihood 
that the measure will be effective if implemented, and the likelihood 
of successful implementation.
    (2) The practicability of the measure for applicant implementation. 
Practicability of implementation may consider such things as cost, 
impact on operations, personnel safety, and practicality of 
implementation.
    The following suite of mitigation measures and procedures, i.e., 
measures taken to monitor, avoid, or minimize the encounter and 
potential take of marine mammals, will be employed by the SWFSC during 
research cruises and activities. For a summary of measures proposed by 
SWFSC, please see Table 11-1 of the application. These procedures are 
the same whether the survey is conducted by SWFSC or is a SWFSC-
supported survey, which may be conducted onboard a variety of vessels, 
e.g., on board a NOAA vessel or

[[Page 53625]]

charter vessel. The procedures described are based on protocols used 
during previous research surveys and/or best practices developed for 
commercial fisheries using similar gear. The SWFSC conducts a large 
variety of research operations, but only activities using trawl, hook 
and line, and purse seine gears are expected to present a reasonable 
likelihood of resulting in incidental take of marine mammals. SWFSC's 
past survey operations have resulted in marine mammal interactions. 
These protocols are designed to minimize to the extent practicable the 
interactions that do happen while providing credible, documented, and 
safe encounters with observed or captured animals. Mitigation 
procedures will be focused on those situations where mammals, in the 
best professional judgement of the vessel operator and Chief Scientist 
(CS), pose a risk of incidental take. In many instances, the SWFSC will 
use streamlined protocols and training for protected species developed 
in support of the 2015 rule and refined during implementation of the 
rule.
    The SWFSC has invested significant time and effort in identifying 
technologies, practices, and equipment to minimize the impact of the 
proposed activities on marine mammal species and stocks and their 
habitat. These efforts have resulted in the consideration of many 
potential mitigation measures, including those the SWFSC has determined 
to be feasible and has implemented for years as a standard part of 
sampling protocols. These measures include the move-on rule mitigation 
protocol (also referred to in the preamble as the move-on rule), 
protected species visual watches, and use of acoustic pingers and a 
marine mammal exclusion device (MMED) on surface trawls using the 
Nordic 264 trawl net.
    Effective monitoring is a key step in implementing mitigation 
measures and is achieved through regular marine mammal watches. Marine 
mammal watches are a standard part of conducting SWFSC fisheries 
research activities, particularly those activities that use gears that 
are known to or potentially interact with marine mammals. Marine mammal 
watches and monitoring occur during daylight hours prior to deployment 
of gear (e.g., trawls, purse seine, and longline gear), and they 
continue through active fishing and during retrieval of gear. If marine 
mammals are sighted in the area and are considered to be at risk of 
interaction with the research gear, then the sampling station is either 
moved or canceled or the activity is suspended until the marine mammals 
are no longer in the area. On smaller vessels, the CS and the vessel 
operator are typically those looking for marine mammals and other 
protected species. When marine mammal researchers are on board 
(distinct from marine mammal observers dedicated to monitoring for 
potential gear interactions), they will record the estimated species 
and numbers of animals present and their behavior. If marine mammal 
researchers are not on board or available, then the CS in cooperation 
with the vessel operator will monitor for marine mammals and provide 
training as practical to bridge crew and other crew to observe and 
record such information. Because marine mammals are frequently observed 
in CCE waters, marine mammal observations may be limited to those 
animals that directly interact with or are near to the vessel or gear. 
NOAA vessels, chartered vessels, and affiliated vessels or studies are 
required to monitor interactions with marine mammals but are limited to 
reporting direct interactions, dead animals, or entangled whales.

General Measures

    Coordination and Communication--When SWFSC survey effort is 
conducted aboard NOAA-owned vessels, there are both vessel officers and 
crew and a scientific party. Vessel officers and crew are not composed 
of SWFSC staff but are employees of NOAA's Office of Marine and 
Aviation Operations (OMAO), which is responsible for the management and 
operation of NOAA fleet ships and aircraft and is composed of uniformed 
officers of the NOAA Commissioned Corps as well as civilians. The 
ship's officers and crew provide mission support and assistance to 
embarked scientists, and the vessel's Commanding Officer (CO) has 
ultimate responsibility for vessel and passenger safety and, therefore, 
decision authority. When SWFSC survey effort is conducted aboard 
cooperative platforms (i.e., non-NOAA vessels), ultimate responsibility 
and decision authority again rests with non-SWFSC personnel (i.e., 
vessel's master or captain). Decision authority includes the 
implementation of mitigation measures (e.g., whether to stop deployment 
of trawl gear upon observation of marine mammals). The scientific party 
involved in any SWFSC survey effort is composed, in part or whole, of 
SWFSC staff and is led by a CS. Therefore, because the SWFSC--not OMAO 
or any other entity that may have authority over survey platforms used 
by SWFSC--is the applicant to whom any incidental take authorization 
issued under the authority of these proposed regulations would be 
issued, we require that the SWFSC take all necessary measures to 
coordinate and communicate in advance of each specific survey with 
OMAO, or other relevant parties, to ensure that all mitigation measures 
and monitoring requirements described herein, as well as the specific 
manner of implementation and relevant event-contingent decision-making 
processes, are clearly understood and agreed-upon. This may involve 
description of all required measures when submitting cruise 
instructions to OMAO or when completing contracts with external 
entities. SWFSC will coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (CO/master or 
designee(s), as appropriate) and scientific party in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures. The CS will be responsible for 
coordination with the Officer on Deck (OOD; or equivalent on non-NOAA 
platforms) to ensure that requirements, procedures, and decision-making 
processes are understood and properly implemented.
    Vessel Speed--Vessel speed during active sampling rarely exceeds 5 
kn, with typical speeds being 2-4 kn. Transit speeds vary from 6-14 kn 
but average 10 kn. These low vessel speeds minimize the potential for 
ship strike. At any time during a survey or in transit, if a crew 
member or designated marine mammal observer standing watch sights 
marine mammals that may intersect with the vessel course that 
individual will immediately communicate the presence of marine mammals 
to the bridge for appropriate course alteration or speed reduction, as 
possible, to avoid incidental collisions.
    Other Gears--The SWFSC deploys a wide variety of gear to sample the 
marine environment during all of their research cruises. Many of these 
types of gear (e.g., plankton nets, video camera and ROV deployments) 
are not considered to pose any risk to marine mammals and are therefore 
not subject to specific mitigation measures. However, at all times when 
the SWFSC is conducting survey operations at sea, the OOD and/or CS and 
crew will monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    Handling Procedures--Handling procedures are those taken to return 
a live animal to the sea or process a dead animal. The SWFSC will 
continue to

[[Page 53626]]

implement handling protocols developed in support of the 2015 rule and 
refined during implementation of the rule, to minimize potential harm 
to marine mammals that are incidentally taken during the course of 
fisheries research activities. These procedures are expected to 
increase post-release survival and, in general, following a ``common 
sense'' approach to handling captured or entangled marine mammals will 
present the best chance of minimizing injury to the animal and of 
decreasing risks to scientists and vessel crew. Handling or 
disentangling marine mammals carries inherent safety risks, and using 
best professional judgment and ensuring human safety is paramount.
    Captured live or injured marine mammals are released from research 
gear and returned to the water as soon as possible with no gear or as 
little gear remaining on the animal as possible. Animals are released 
without removing them from the water if possible and data collection is 
conducted in such a manner as not to delay release of the animal(s) or 
endanger the crew. SWFSC staff are instructed on how to identify 
different species; handle and bring marine mammals aboard a vessel; 
assess the level of consciousness; remove fishing gear; and return 
marine mammals to water. For further information regarding proposed 
handling procedures, please see section 11.5 of SWFSC's application.

Trawl Survey Visual Monitoring and Operational Protocols

    Visual monitoring protocols, described above, are an integral 
component of trawl mitigation protocols. Observation of marine mammal 
presence and behaviors in the vicinity of SWFSC trawl survey operations 
allows for the application of professional judgment in determining the 
appropriate course of action to minimize the incidence of marine mammal 
gear interactions.
    The OOD, CS or other designated member of the scientific party, and 
crew standing watch on the bridge visually scan surrounding waters with 
the naked eye and rangefinding binoculars (or monocular) for marine 
mammals prior to, during, and until all trawl operations are completed. 
Some sets may be made at night or other limited visibility conditions, 
when visual observation may be conducted using the naked eye and 
available vessel lighting with limited effectiveness.
    Marine mammal watches will be initiated 15 minutes prior to arrival 
on station (or for the amount of time to travel between stations if 
less than 15 minutes) to determine if marine mammals are near the 
planned trawl set location. Either dedicated observers, the OOD, CS, 
and/or crew standing watch will visually scan for marine mammals during 
all daytime operations. Marine mammal watches will be conducted using 
any binocular or monocular sighting instrument, with a means to 
estimate distance to infringing protected species during daytime, and 
the best available means of observation during nighttime observations. 
This typically occurs during transit leading up to arrival at the 
sampling station because of standard protocol of immediate deployment 
of trawl gear upon arriving at station (intended to reduce the risk of 
attracting curious marine mammals). However, in some cases it may be 
necessary to conduct a plankton tow prior to deploying trawl gear. In 
these cases, the visual watch will continue until trawl gear is ready 
to be deployed.
    Lookouts immediately alert the OOD and CS as to their best estimate 
of the species and number of animals observed and any observed animal's 
distance, bearing, and direction of travel relative to the ship's 
position. If any marine mammals are sighted around the vessel before 
setting gear, the vessel may be moved away from the animals to a 
different section of the sampling area if the animals appear to be at 
risk of interaction with the gear. This is what is referred to as the 
``move-on'' rule.
    If marine mammals are sighted within 1 nm of the planned set 
location in the 15 minutes before setting the gear, the vessel will 
transit to a different section of the sampling area to maintain a 
minimum set distance of 1 nm. An exception to this protocol is for 
baleen whales; baleen whales are commonly observed within the 1 nm 
distance from SWFSC trawl sampling locations but have never been 
observed to be attracted to SWFSC research activity and have never 
interacted with SWFSC research gear. Decision regarding the potential 
need to move-on in response to baleen whale presence will be made on 
the basis of professional judgment based on the specific circumstances. 
If after moving on, protected species remain within the 1 nm exclusion 
zone, the CS or watch leader may decide to move again or to skip the 
station. However, SWFSC acknowledges that the effectiveness of visual 
monitoring may be limited depending on weather and lighting conditions, 
and it may not always be possible to conduct visual observations out to 
1 nm. The CS or watch leader will determine the best strategy to avoid 
potential takes of marine mammals based on the species encountered, 
their numbers and behavior, position and vector relative to the vessel, 
and other factors. For instance, a marine mammal transiting through the 
area off in the distance might only require a short move from the 
designated station while a pod of dolphins gathered around the vessel 
may require a longer move from the station or possibly cancellation if 
they follow the vessel. In any case, no gear will be deployed if marine 
mammals other than baleen whales have been sighted within 1 nm of the 
planned set location during the 15-minute watch period.
    In many cases, trawl operations will be the first activity 
undertaken upon arrival at a new station, in order to reduce the 
opportunity to attract marine mammals to the vessel. However, in some 
cases it will be necessary to conduct plankton tows prior to deploying 
trawl gear in order to avoid trawling through extremely high densities 
of jellies and similar taxa that are numerous enough to severely damage 
trawl gear.
    Once the trawl net is in the water, the OOD, CS, and/or crew 
standing watch will continue to monitor the waters around the vessel 
and maintain a lookout for marine mammal presence as far away as 
environmental conditions allow. If marine mammals are sighted before 
the gear is fully retrieved, the most appropriate response to avoid 
incidental take will be determined by the professional judgment of the 
CS, watch leader, OOD and other experienced crew as necessary. This 
judgment will be based on their past experience operating gears around 
marine mammals and SWFSC training sessions that facilitate 
dissemination of expertise operating in these situations (e.g., factors 
that contribute to marine mammal gear interactions and those that aid 
in successfully avoiding these events). These judgments take into 
consideration the species, numbers, and behavior of the animals, the 
status of the trawl net operation (net opening, depth, and distance 
from the stern), the time it would take to retrieve the net, and safety 
considerations for changing speed or course.
    The appropriate course of action to minimize the risk of incidental 
take is determined by the professional judgment of the OOD, vessel 
operator, and the CS based on all situation variables, even if the 
choices compromise the value of the data collected at the station. We 
recognize that it is not possible to dictate in advance the exact 
course of action that the OOD or CS should take in any given event 
involving the presence of marine mammals in proximity to an ongoing

[[Page 53627]]

trawl tow, given the sheer number of potential variables, combinations 
of variables that may determine the appropriate course of action, and 
the need to prioritize human safety in the operation of fishing gear at 
sea. Nevertheless, we require a full accounting of factors that shape 
both successful and unsuccessful decisions, and these details will be 
fed back into SWFSC training efforts and ultimately help to refine the 
best professional judgment that determines the course of action taken 
in any given scenario (see further discussion in ``Proposed Monitoring 
and Reporting'').
    If trawling operations have been suspended because of the presence 
of marine mammals, the vessel will resume trawl operations (when 
practicable) only when the mammals have not been sighted within 1 nm of 
the planned set location. This decision is at the discretion of the 
officer on watch and is dependent on the situation.
    Care will be taken when emptying the trawl to avoid damage to any 
marine mammals that may be caught in the gear but are not visible upon 
retrieval. The gear will be emptied as quickly as possible after 
retrieval in order to determine whether or not marine mammals, or any 
other protected species, are present.
    Standard survey protocols that are expected to lessen the 
likelihood of marine mammal interactions include standardized tow 
durations and distances. Standard tow durations of not more than 45 
minutes at the target depth have been implemented, excluding deployment 
and retrieval time (which may require an additional 30 minutes 
depending on depth), to reduce the likelihood of attracting and 
incidentally taking marine mammals and other protected species. These 
short tow durations decrease the opportunity for curious marine mammals 
to find the vessel and investigate. Trawl tow distances are less than 3 
nm, which should reduce the likelihood of attracting and incidentally 
taking marine mammals. Typical tow distances are 1-2 nm, depending on 
the survey and trawl speed. In addition, the vessel's crew will clean 
trawl nets prior to deployment to remove prey items that might attract 
marine mammals. Catch volumes are typically small, with every attempt 
made to collect all organisms caught in the trawl.
    Marine Mammal Excluder Devices--The NETS Nordic 264 trawl gear will 
be fitted with MMEDs to allow marine mammals caught during trawling 
operations an opportunity to escape. These devices enable target 
species to pass through a grid or mesh barrier and into the codend 
while preventing the passage of marine mammals, which are ejected out 
through an escape opening or swim back out of the mouth of the net. 
Potential for interactions with protected species, such as marine 
mammals, is often greatest during the deployment and retrieval of the 
trawl, when the net is at or near the surface of the water. During 
retrieval of the net, protected species may become entangled in the net 
while attempting to feed from the codend as it floats near the surface 
of the water. Considerable effort has been given to developing MMEDs 
that allow marine mammals to escape from the net while allowing 
retention of the target species (e.g., Dotson et al., 2010). MMEDs 
generally consist of a large aluminum grate positioned in the 
intermediate portion of the net forward of the codend and below an 
``escape panel'' constructed into the upper net panel above the grate 
(Figure A-1 of SWFSC's application). The angled aluminum grate is 
intended to guide marine mammals through the escape panel and prevent 
them from being caught in the codend (Dotson et al., 2010). MMEDs are 
currently deployed on all surveys using Nordic 264 nets.
    Acoustic Deterrent Devices--Pingers will be deployed during all 
trawl operations and on all types of trawl nets. Two to four pingers 
will be placed along the footrope and/or headrope to discourage marine 
mammal interactions.
    Acoustic pingers are underwater sound emitting devices that are 
designed to decrease the probability of entanglement or unintended 
capture of marine mammals (see Appendix B of the SWFSC application). 
Acoustic pingers have been shown to effectively deter several species 
of small cetaceans from becoming entangled in gillnets and driftnets 
(for detailed discussion, please see 80 FR 8166).
    The CPS Survey uses the Netguard 70 kHz dolphin pinger manufactured 
by Future Oceans and the Rockfish Recruitment and Ecosystem Assessment 
Surveys use the DDD-03H pinger manufactured by STM Products. Pingers 
remain operational at depths between 10 m and 200 m. Tones range from 
100 microseconds to seconds in duration, with variable frequency of 5-
500 kHz and maximum sound pressure level of 176 dB rms re 1 [mu]Pa at 1 
m at 30-80 kHz.
    If one assumes that use of a pinger is effective in deterring 
marine mammals from interacting with fishing gear, one must therefore 
assume that receipt of the acoustic signal has a disturbance effect on 
those marine mammals (i.e., potential Level B harassment). However, 
Level B harassment that may be incurred as a result of SWFSC use of 
pingers does not constitute take that must be authorized under the 
MMPA. The MMPA prohibits the taking of marine mammals by U.S. citizens 
or within the U.S. EEZ unless such taking is appropriately permitted or 
authorized. However, the MMPA provides several narrowly defined 
exemptions from this requirement (e.g., for Alaskan natives; for 
defense of self or others; for Good Samaritans (16 U.S.C. 1371(b)-
(d))). Section 109(h) of the MMPA (16 U.S.C. 1379(h)) allows for the 
taking of marine mammals in a humane manner by Federal, state, or local 
government officials or employees in the course of their official 
duties if the taking is necessary for the protection or welfare of the 
mammal, the protection of the public health and welfare, or the non-
lethal removal of nuisance animals. SWFSC use of pingers as a deterrent 
device, which may cause Level B harassment of marine mammals, is 
intended solely for the avoidance of potential marine mammal 
interactions with SWFSC research gear (i.e., avoidance of Level A 
harassment, serious injury, or mortality). Therefore, use of such 
deterrent devices, and the taking that may result, is for the 
protection and welfare of the mammal and is covered explicitly under 
MMPA section 109(h)(1)(A). Potential taking of marine mammals resulting 
from SWFSC use of pingers is not discussed further in this document.

Longline Survey Visual Monitoring and Operational Protocols

    Visual monitoring requirements for all longline surveys are similar 
to the general protocols described above for trawl surveys. Please see 
that section for full details of the visual monitoring protocol and the 
move-on rule mitigation protocol. In summary, requirements for longline 
surveys are to: (1) Conduct visual monitoring prior to arrival on 
station; (2) implement the move-on rule if marine mammals are observed 
within the area around the vessel and may be at risk of interacting 
with the vessel or gear; (3) deploy gear as soon as possible upon 
arrival on station (depending on presence of marine mammals); and (4) 
maintain visual monitoring effort throughout deployment and retrieval 
of the longline gear. As was described for trawl gear, the OOD, CS, or 
watch leader will use best professional judgment to minimize the risk 
to marine mammals from potential gear interactions during deployment 
and retrieval of gear. If

[[Page 53628]]

marine mammals are detected during setting operations and are 
considered to be at risk, immediate retrieval or suspension of 
operations may be warranted. If operations have been suspended because 
of the presence of marine mammals, the vessel will resume setting (when 
practicable) only when the animals are believed to have departed the 
area. If marine mammals are detected during retrieval operations and 
are considered to be at risk, haul-back may be postponed. These 
decisions are at the discretion of the OOD/CS and are dependent on the 
situation.
    An exception is when California sea lions are sighted during the 
watch period prior to setting longline gear. For this species only, 
longline gear may be set if a group of 5 or fewer animals is sighted 
within 1 nm of the planned set location; when groups of more than 5 sea 
lions are sighted within 1 nm of the sampling station, deployment of 
gear would be suspended. This exception has been defined considering 
the rarity of past interactions between this gear and California sea 
lions and in order to make this mitigation measure practicable to 
implement. Without it, given the density of California sea lions in the 
areas where longline surveys are conducted, the SWFSC believes 
implementing the move-on rule for a single animal would preclude 
sampling in some areas and introduce significant bias into survey 
results. Groups of five California sea lions or greater is believed to 
represent a trigger for the move-on rule that would allow sampling in 
areas where target species can be caught without increasing the number 
of interactions between marine mammals and research longline gear. This 
measure was implemented under the 2015 rule, and no increase in sea 
lion take was observed, nor were multiple sea lions captured during any 
set.
    As for trawl surveys, some standard survey protocols are expected 
to minimize the potential for marine mammal interactions. SWFSC 
longline sets are conducted with drifting pelagic or anchored gear 
marked at both ends with buoys. Typical soak times are 2-4 hours, but 
may be as long as 8 hours when targeting swordfish (measured from the 
time the last hook is in the water to when the first hook is brought 
out of the water).
    SWFSC longline protocols specifically prohibit chumming (releasing 
additional bait to attract target species to the gear). However, spent 
bait may be discarded during gear retrieval while gear is still in the 
water. In the experience of SWFSC, this practice increases survey 
efficiency and has not resulted in interactions with marine mammals. 
Scientist observations indicate pinnipeds do not gather immediately aft 
of the survey vessel as a result of discarding spent bait. However, if 
protected species interactions with longline gear increase, or if SWFSC 
staff observe that this practice is contributing to protected species 
interactions, the SWFSC will revisit this practice and consider the 
need to retain spent bait until no gear remains in the water.

Purse Seine Survey Visual Monitoring and Operational Protocols

    Visual monitoring and operational protocols for purse seine surveys 
are similar to those described previously for trawl surveys, with a 
focus on visual observation in the survey area and avoidance of marine 
mammals that may be at risk of interaction with survey vessels or gear. 
The crew will keep watch for marine mammals before and during a set. If 
a bird or marine mammal observer is on board, the observer(s) inform 
the CS and captain of any marine mammals detected at or near a sampling 
station. Observations focus on avoidance of cetaceans (e.g., dolphins, 
and porpoises) and aggregations of pinnipeds.
    If any killer whales, dolphins, or porpoises are observed within 
approximately 500 m of the purse seine survey location, the set will be 
delayed. If any dolphins or porpoises are observed in the net, the net 
will be immediately opened to let the animals go. Pinnipeds may be 
attracted to fish caught in purse seine gear but are known to jump in 
and out of the net without entanglement. If pinnipeds are in the 
immediate area where the net is to be set, the set is delayed until the 
animals move out of the area or the station is abandoned. However, if 
fewer than 5 pinnipeds are seen in the vicinity but do not appear to be 
in the direct way of the setting operation, the net may be set.
    SWFSC also uses unmanned aerial systems (UAS) to conduct research. 
For pinnipeds, UAS flights will be at 100-200 ft depending on species 
(i.e., 100 ft for elephant seals and 200 ft for other species); in 
mixed aggregations, the most conservative altitude is used. UASs will 
not be flown directly over pinniped haulouts.
    We have carefully evaluated the SWFSC's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that we prescribed the means of effecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Based on our evaluation of these measures, we 
have preliminarily determined that the proposed mitigation measures 
provide the means of effecting the least practicable adverse impact on 
marine mammal species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
subsistence uses.

Proposed Monitoring and Reporting

    In order to issue an LOA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of the authorized taking. NMFS's MMPA 
implementing regulations further describe the information that an 
applicant should provide when requesting an authorization (50 CFR 
216.104(a)(13)), including the means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and the level of taking or impacts on populations of marine 
mammals.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of significant interactions with marine mammal 
species in action area (e.g., animals that came close to the vessel, 
contacted the gear, or are otherwise rare or displaying unusual 
behavior).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or important physical components of marine 
mammal habitat).
     Mitigation and monitoring effectiveness.

[[Page 53629]]

    SWFSC plans to continue its systematic training, operations, data 
collection, animal handling and sampling protocols, etc., as refined 
through implementation of the 2015 rule, in order to improve its 
ability to understand how mitigation measures influence interaction 
rates and ensure its research operations are conducted in an informed 
manner and consistent with lessons learned from those with experience 
operating these gears in close proximity to marine mammals. It is in 
this spirit that we propose to continue the monitoring requirements 
described below.

Visual Monitoring

    Marine mammal watches are a standard part of conducting fisheries 
research activities, and are implemented as described previously in 
``Proposed Mitigation.'' Dedicated marine mammal visual monitoring 
occurs as described (1) for some period prior to deployment of most 
research gear; (2) throughout deployment and active fishing of all 
research gears; (3) for some period prior to retrieval of longline 
gear; and (4) throughout retrieval of all research gear. This visual 
monitoring is performed by trained SWFSC personnel or other trained 
crew during the monitoring period. Observers record the species and 
estimated number of animals present and their behaviors, which may be 
valuable information towards an understanding of whether certain 
species may be attracted to vessels or certain survey gears. 
Separately, marine mammal watches are conducted by watch-standers 
(those navigating the vessel and other crew; these will typically not 
be SWFSC personnel) at all times when the vessel is being operated. The 
primary focus for this type of watch is to avoid striking marine 
mammals and to generally avoid navigational hazards. These watch-
standers typically have other duties associated with navigation and 
other vessel operations and are not required to record or report to the 
scientific party data on marine mammal sightings, except when gear is 
being deployed or retrieved.
    SWFSC will also monitor disturbance of hauled-out pinnipeds 
resulting from the presence of researchers in the Antarctic, paying 
particular attention to the distance at which different species of 
pinniped are disturbed. Disturbance will be recorded according to the 
three-point scale, representing increasing seal response to 
disturbance, shown in Table 9.

Training

    SWFSC anticipates that additional information on practices to avoid 
marine mammal interactions can be gleaned from training sessions and 
the continuation of systematic data collection standards. The SWFSC 
will conduct annual trainings for all chief scientists and other 
personnel who may be responsible for conducting marine mammal visual 
observations or handling incidentally captured marine mammals to 
explain mitigation measures and monitoring and reporting requirements, 
mitigation and monitoring protocols, marine mammal identification, 
recording of count and disturbance observations, completion of 
datasheets, and use of equipment. Some of these topics may be familiar 
to SWFSC staff, who may be professional biologists; the SWFSC shall 
determine the agenda for these trainings and ensure that all relevant 
staff have necessary familiarity with these topics. Training typically 
includes three primary elements: (1) An overview of the purpose and 
need for the authorization, including mandatory mitigation measures by 
gear and the purpose for each, and species that SWFSC is authorized to 
incidentally take; (2) detailed descriptions of reporting, data 
collection, and sampling protocols; and (3) discussion of best 
professional judgment (which is recognized as an integral component of 
mitigation implementation; see ``Proposed Mitigation'').
    The second topic includes instruction on how to complete data 
collection forms such as the marine mammal watch log, the incidental 
take form (e.g., specific gear configuration and details relevant to an 
interaction with protected species), and forms used for species 
identification and biological sampling.
    The third topic includes use of professional judgment in any 
incidents of marine mammal interaction and instructive examples where 
use of best professional judgment was determined to be successful or 
unsuccessful. We recognize that many factors come into play regarding 
decision-making at sea and that it is not practicable to simplify what 
are inherently variable and complex situational decisions into rules 
that may be defined on paper. However, it is our intent that use of 
best professional judgment be an iterative process from year to year, 
in which any at-sea decision-maker (i.e., responsible for decisions 
regarding the avoidance of marine mammal interactions with survey gear 
through the application of best professional judgment) learns from the 
prior experience of all relevant SWFSC personnel (rather than from 
solely their own experience). The outcome should be increased 
transparency in decision-making processes where best professional 
judgment is appropriate and, to the extent possible, some degree of 
standardization across common situations, with an ultimate goal of 
reducing marine mammal interactions. It is the responsibility of the 
SWFSC to facilitate such exchange.
    To reduce marine mammal takes over time, the SWFSC maximizes 
efficient use of charter and NOAA ship time, and engages in operational 
planning with the NMFS Northwest and Pacific Islands Fisheries Science 
Centers to delineate respective research responsibilities and to reduce 
duplication of effort among the Centers.

Handling Procedures and Data Collection

    Improved standardization of handling procedures were discussed 
previously in ``Proposed Mitigation.'' In addition to the benefits 
implementing these protocols are believed to have on the animals 
through increased post-release survival, SWFSC believes adopting these 
protocols for data collection will also increase the information on 
which ``serious injury'' determinations are based and improve 
scientific knowledge about marine mammals that interact with fisheries 
research gears and the factors that contribute to these interactions. 
SWFSC personnel are provided standard guidance and training regarding 
handling of marine mammals, including how to identify different 
species, bring an individual aboard a vessel, assess the level of 
consciousness, remove fishing gear, return an individual to water and 
log activities pertaining to the interaction.
    SWFSC will record interaction information on their own standardized 
forms. To aid in serious injury determinations and comply with the 
current NMFS Serious Injury Guidelines (NMFS, 2012a, 2012b), 
researchers will also answer a series of supplemental questions on the 
details of marine mammal interactions. Finally, for any marine mammals 
that are killed during fisheries research activities, scientists will 
collect data and samples as appropriate.

Reporting

    As is normally the case, SWFSC will coordinate with the relevant 
stranding coordinators for any unusual marine mammal behavior and any 
stranding, beached live/dead, or floating marine mammals that are 
encountered during field research activities. In addition, Chief 
Scientists (or cruise leader, CS) will provide reports to SWFSC 
leadership and to the Office of Protected Resources (OPR). As a result, 
when

[[Page 53630]]

marine mammals interact with survey gear, whether killed or released 
alive, a report provided by the CS will fully describe any observations 
of the animals, the context (vessel and conditions), decisions made and 
rationale for decisions made in vessel and gear handling. The 
circumstances of these events are critical in enabling SWFSC and OPR to 
better evaluate the conditions under which takes are most likely occur. 
We believe in the long term this will allow the avoidance of these 
types of events in the future.
    The SWFSC will submit annual summary reports to OPR including: (1) 
Annual line-kilometers surveyed during which the predominant acoustic 
systems were used (see ``Estimated Take by Acoustic Harassment'' for 
further discussion), specific to each region; (2) summary information 
regarding use of all hook and line, purse seine, and trawl gear, 
including number of sets, tows, etc., specific to each research area 
and gear; (3) accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why; (4) summary 
information related to any disturbance of pinnipeds, including event-
specific total counts of animals present, counts of reactions according 
to the three-point scale shown in Table 9, and distance of closest 
approach; and (5) a written evaluation of the effectiveness of SWFSC 
mitigation strategies in reducing the number of marine mammal 
interactions with survey gear, including best professional judgment and 
suggestions for changes to the mitigation strategies, if any. The 
period of reporting will be annually, and the report must be submitted 
not less than ninety days following the end of a given year. Submission 
of this information is in service of an adaptive management framework 
allowing NMFS to make appropriate modifications to mitigation and/or 
monitoring strategies, as necessary, during the proposed 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.
    SWFSC 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 serious injury 
(SI) determinations for marine mammals that are released alive. SWFSC 
will require that the CS complete data forms and address supplemental 
questions, both of which have been developed to aid in SI 
determinations. SWFSC understands the critical need to provide as much 
relevant information as possible about marine mammal interactions to 
inform decisions regarding SI determinations. In addition, the SWFSC 
will perform all necessary reporting to ensure that any incidental M/SI 
is incorporated as appropriate into relevant SARs.

Negligible Impact Analysis and Determination

    Introduction--NMFS has defined negligible impact as an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival (50 CFR 216.103). A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
takes alone is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' by mortality, serious injury, 
and Level A or Level B harassment, we consider other factors, such as 
the likely nature of any behavioral responses (e.g., intensity, 
duration), the context of any such responses (e.g., critical 
reproductive time or location, migration), as well as effects on 
habitat, and the likely effectiveness of mitigation. We also assess the 
number, intensity, and context of estimated takes by evaluating this 
information relative to population status. Consistent with the 1989 
preamble for NMFS's implementing regulations (54 FR 40338; September 
29, 1989), the impacts from other past and ongoing anthropogenic 
activities are incorporated into this analysis via their impacts on the 
environmental baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, and specific consideration of take 
by M/SI previously authorized for other NMFS research activities).
    We note here that the takes from potential gear interactions 
enumerated below could result in non-serious injury, but their worse 
potential outcome (mortality) is analyzed for the purposes of the 
negligible impact determination. We discuss here the connection between 
the mechanisms for authorizing incidental take under section 101(a)(5) 
for activities, such as SWFSC's research activities, and for 
authorizing incidental take from commercial fisheries. In 1988, 
Congress amended the MMPA's provisions for addressing incidental take 
of marine mammals in commercial fishing operations. Congress directed 
NMFS to develop and recommend a new long-term regime to govern such 
incidental taking (see MMC, 1994). The need to develop a system suited 
to the unique circumstances of commercial fishing operations led NMFS 
to suggest a new conceptual means and associated regulatory framework. 
That concept, 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

[[Page 53631]]

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 designed without consideration of how it 
applies in section 118 and how other statutory management frameworks in 
the MMPA differ. PBR was not designed as an absolute threshold limiting 
commercial fisheries, but rather as a means to evaluate the relative 
impacts of those activities on marine mammal stocks. Even where 
commercial fishing is causing M/SI at levels that exceed PBR, the 
fishery is not suspended. When M/SI exceeds PBR, NMFS may develop a 
take reduction plan, usually with the assistance of a take reduction 
team. The take reduction plan will include measures to reduce and/or 
minimize the taking of marine mammals by commercial fisheries to a 
level below the stock's PBR. That is, where the total annual human-
caused M/SI exceeds PBR, NMFS is not required to halt fishing 
activities contributing to total M/SI but rather utilizes the take 
reduction process to further mitigate the effects of fishery activities 
via additional bycatch reduction measures. PBR is not used to grant or 
deny authorization of commercial fisheries that may incidentally take 
marine mammals.
    Similarly, to the extent consideration of PBR may be relevant to 
considering the impacts of incidental take from activities other than 
commercial fisheries, using it as the sole reason to deny incidental 
take authorization for those activities would be inconsistent with 
Congress's intent under section 101(a)(5) and the use of PBR under 
section 118. The standard for authorizing incidental take under section 
101(a)(5) continues to be, among other things, whether the total taking 
will have a negligible impact on the species or stock. When Congress 
amended the MMPA in 1994 to add section 118 for commercial fishing, it 
did not alter the standards for authorizing non-commercial fishing 
incidental take under section 101(a)(5), acknowledging that negligible 
impact under section 101(a)(5) is a separate standard from PBR under 
section 118. In fact, in 1994 Congress also amended section 
101(a)(5)(E) (a separate provision governing commercial fishing 
incidental take for species listed under the Endangered Species Act) to 
add compliance with the new section 118 but kept the requirement for a 
negligible impact finding, showing that the determination of negligible 
impact and application of PBR may share certain features but are 
different.
    Since the introduction of PBR, NMFS has used the concept almost 
entirely within the context of implementing sections 117 and 118 and 
other commercial fisheries management-related provisions of the MMPA. 
The MMPA requires that PBR be estimated in stock assessment reports and 
that it be used in applications related to the management of take 
incidental to commercial fisheries (i.e., the take reduction planning 
process described in section 118 of the MMPA and the determination of 
whether a stock is ``strategic'' (16 U.S.C. 1362(19))), but nothing in 
the MMPA requires the application of PBR outside the management of 
commercial fisheries interactions with marine mammals.
    Nonetheless, NMFS recognizes that as a quantitative metric, PBR may 
be useful in certain instances as a consideration when evaluating the 
impacts of other human-caused activities on marine mammal stocks. 
Outside the commercial fishing context, and in consideration of all 
known human-caused mortality, PBR can help inform the potential effects 
of M/SI caused by activities authorized under 101(a)(5)(A) on marine 
mammal stocks. As noted by NMFS and the USFWS in our implementation 
regulations for the 1986 amendments to the MMPA (54 FR 40341; September 
29, 1989), the Services consider many factors, when available, in 
making a negligible impact determination, including, but not limited 
to, the status of the species or stock relative to OSP (if known), 
whether the recruitment rate for the species or stock is increasing, 
decreasing, stable, or unknown, the size and distribution of the 
population, and existing impacts and environmental conditions. To 
specifically use PBR, along with other factors, to evaluate the effects 
of M/SI, we first calculate a metric for each species or stock that 
incorporates information regarding ongoing anthropogenic M/SI into the 
PBR value (i.e., PBR minus the total annual anthropogenic mortality/
serious injury estimate), which is called ``residual PBR'' (Wood et 
al., 2012). We then consider how the anticipated potential incidental 
M/SI from the activities being evaluated compares to residual PBR. 
Anticipated or potential M/SI that exceeds residual PBR is considered 
to have a higher likelihood of adversely affecting rates of recruitment 
or survival, while anticipated M/SI that is equal to or less than 
residual PBR has a lower likelihood (both examples given without 
consideration of other types of take, which also factor into a 
negligible impact determination). In such cases where the anticipated 
M/SI is near, at, or above residual PBR, consideration of other 
factors, including those outlined above as well as mitigation and other 
factors (positive or negative), is especially important to assessing 
whether the M/SI will have a negligible impact on the stock. As 
described above, PBR is a conservative metric and is not intended to be 
used as a solid cap on mortality--accordingly, impacts from M/SI that 
exceed residual PBR may still potentially be found to be negligible in 
light of other factors that offset concern, especially when robust 
mitigation and adaptive management provisions are included.
    Alternately, for a species or stock with incidental M/SI less than 
10 percent of residual PBR, we consider M/SI from the specified 
activities to represent an insignificant incremental increase in 
ongoing anthropogenic M/SI that alone (i.e., in the absence of any 
other take) cannot affect annual rates of recruitment and survival. In 
a prior incidental take rulemaking and in the commercial fishing 
context, this threshold is identified as the significance threshold, 
but it is more accurately an insignificance threshold outside 
commercial fishing because it represents the level at which there is no 
need to consider other factors in determining the role of M/SI in 
affecting rates of recruitment and survival. Assuming that any 
additional incidental take by harassment would not exceed the 
negligible impact level, the anticipated M/SI caused by the activities 
being evaluated would have a negligible impact on the species or stock. 
This 10 percent was identified as a workload simplification 
consideration to avoid the need to provide unnecessary additional 
information when the conclusion is relatively obvious; but as described 
above, values above 10 percent have no particular significance

[[Page 53632]]

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 rulemakings for the NMFS Alaska Fisheries 
Science Center (AFSC) and the NMFS Northwest Fisheries Science Center 
(NWFSC) has been incorporated into the residual PBR.
    We first consider maximum potential incidental M/SI for each stock 
(Table 8) in consideration of NMFS's threshold for identifying 
insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July 
20, 2004)). By considering the maximum potential incidental M/SI in 
relation to PBR and ongoing sources of anthropogenic mortality, we 
begin our evaluation of whether the potential incremental addition of 
M/SI through SWFSC research activities may affect the species' or 
stock's annual rates of recruitment or survival. We also consider the 
interaction of those mortalities with incidental taking of that species 
or stock by harassment pursuant to the specified activity.

Summary of Estimated Incidental Take

    Here we provide a summary of the total incidental take 
authorization on an annual basis, as well as other information relevant 
to the negligible impact analysis. Table 11 shows information relevant 
to our negligible impact analysis concerning the total annual taking 
that could occur for each stock from NMFS' scientific research 
activities when considering incidental proposed for authorization for 
SWFSC, as well as take previously authorized for AFSC (84 FR 46788; 
September 5, 2019) and NWFSC (83 FR 36370; July 27, 2018). We propose 
to authorize take by M/SI over the five-year period of validity for 
these regulations as indicated in Table 11 below. As noted previously, 
although some gear interactions may result in Level A harassment or the 
release of an uninjured animal, for the purposes of the negligible 
impact analysis, we assume that all of these takes could potentially be 
in the form of M/SI. Table 11 also summarizes annual amounts of take by 
Level B harassment that are proposed for authorization.
    We previously authorized take of marine mammals incidental to 
fisheries research operations conducted by the AFSC (see 83 FR 37638 
and 84 FR 46788), and NWFSC (see 81 FR 38516 and 83 FR 36370). This 
take would occur to some of the same stocks for which we propose to 
authorize take incidental to SWFSC fisheries research operations. 
Therefore, in order to evaluate the likely impact of the take by M/SI 
in this rule, we consider not only other ongoing sources of human-
caused mortality but the potential mortality authorized for AFSC/NWFSC. 
As used in this document, other ongoing sources of human-caused 
(anthropogenic) mortality refers to estimates of realized or actual 
annual mortality reported in the SARs and does not include authorized 
or unknown mortality. Below, we consider the total taking by M/SI for 
SWFSC and previously authorized for AFSC/NWFSC together to produce a 
maximum annual M/SI take level (including take of unidentified marine 
mammals that could accrue to any relevant stock) and compare that value 
to the stock's PBR value, considering ongoing sources of anthropogenic 
mortality. PBR and annual M/SI values considered in Table 11 reflect 
the most recent information available (i.e., draft 2019 SARs).

                            Table 11--Summary Information Related to SWFSC Proposed Annual Take Authorization, 2020-25 (CCE)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Proposed annual     Percent of      SWFSC total
                                                       Level B         estimated      proposed M/SI      AFSC/NWFSC       Estimated     PBR minus annual
          Species \1\                 Stock           harassment       population     authorization,     total M/SI     maximum annual    M/SI (%) \5\
                                                    authorization    abundance \2\     2020-25 \3\     authorization       M/SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale....................  ENP..............              533              2.0                0                0                0  n/a.
Humpback whale................  CA/OR/WA.........               23              0.8                0                0                0  n/a.
Minke whale...................  Alaska...........               19              3.0                0                0                0  n/a.
Sei whale.....................  CA/OR/WA.........               10              1.9                0                0                0  n/a.
Fin whale.....................  CA/OR/WA.........              124              1.4                0                0                0  n/a.
Blue whale....................  ENP..............               18              1.2                0                0                0  n/a.
Sperm whale...................  CA/OR/WA.........               96              4.8                0                0                0  n/a.
Kogia spp.....................  CA/OR/WA.........              213              5.2                2                1              0.6  19.2 (3.1).
Cuvier's beaked whale.........  CA/OR/WA.........              160              4.9                0                0                0  n/a.
Baird's beaked whale..........  CA/OR/WA.........               72              2.7                0                0                0  n/a.
Mesoplodont beaked whales.....  CA/OR/WA.........               84              2.8                0                0                0  n/a.
Bottlenose dolphin............  CA/OR/WA Offshore               62              3.2                9                3              2.8  9.4 (29.8).
                                CA Coastal.......  ...............             13.7                3                0              0.8  0.7 (114.3).
Striped dolphin...............  CA/OR/WA.........              883              3.0               14                7              4.6  237.2 (1.9).
Common dolphin (short-beaked).  CA/OR/WA.........           14,430              1.4               14                4                4  621.6 (0.6).
Common dolphin (long-beaked)..  California.......            1,425              1.5               14                2              3.6  8,353 (0.0).
Pacific white-sided dolphin...  CA/OR/WA.........              412              1.5               41               31             14.8  183.5 (8.1).\9\
Northern right whale dolphin..  CA/OR/WA.........              614              2.3               11                7                4  175.2 (2.3).
Risso's dolphin...............  CA/OR/WA.........              209              3.3               14                9                5  42.3 (11.8).
Killer whale..................  ENP Offshore.....               13              4.3                0                0              n/a  n/a.
                                West Coast         ...............              5.3                0                0              n/a  n/a.
                                 Transient.
                                ENP Southern       ...............             17.3                0                0              n/a  n/a.
                                 Resident.
Short-finned pilot whale......  CA/OR/WA.........               30              3.6                2                2              0.8  3.3 (24.2).
Harbor porpoise...............  Morro Bay........              675             23.1                6            \6\ 2                2  20.4 (9.8).
                                Monterey Bay.....  ...............             18.2  ...............  ...............                2  25 (8.0).
                                San Francisco-     ...............              6.8  ...............  ...............                2  66 (3.0).
                                 Russian River.
                                Northern CA/       ...............              1.9  ...............  ...............                2  474.4 (0.4).
                                 Southern OR.
                                Northern OR/WA     ...............              3.1  ...............            \6\ 4              2.4  148 (1.6).
                                 Coast.
Dall's porpoise...............  CA/OR/WA.........              916              3.6                6                4              2.4  171.7 (1.4).
Guadalupe fur seal............  Mexico-CA........              313              0.9                0                0                0  n/a.
Northern fur seal.............  Pribilof Islands/           12,595          \8\ 2.0                5        \7\ 18-23              6.2  10,896 (0.1).
                                 Eastern Pacific.

[[Page 53633]]

 
                                California.......  ...............          \8\ 2.0  ...............         \7\ 5-13              4.2  449.2 (0.9).
California sea lion...........  United States....            5,095              2.0               30               11              9.2  13,690 (0.1).\9\
Steller sea lion..............  Eastern U.S......              914              2.1               10        \7\ 16-21                7  2,479 (0.3).
Harbor seal...................  California.......            1,114              3.6               14            \6\ 6              4.8  1,598 (0.3).
                                OR/WA Coast......  ...............              4.5  ...............            \6\ 8              5.2  ?
Northern elephant seal........  California                   4,916              2.7                5                1              1.6  4,873.2 (0.0).
                                 Breeding.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For some species with multiple stocks, indicated level of take could occur to individuals from any stock (as indicated in table). For some stocks, a
  range is presented.
\2\ For species with multiple potentially affected stocks, value is conservatively calculated as though all estimated annual takes accrue to each
  potentially affected stock.
\3\ As explained earlier in this document, gear interaction could result in mortality, serious injury, or Level A harassment. Because we do not have
  sufficient information to enable us to parse out these outcomes, we present such take as a pool. For purposes of this negligible impact analysis we
  assume the worst case scenario (that all such takes incidental to research activities result in mortality).
\4\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock as a result of NMFS's
  fisheries research activities and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To reach
  this total, we add one to the total for each pinniped and cetacean that may be captured in trawl gear and one to the total for each pinniped that may
  be captured in hook and line gear. This represents the potential that the take of an unidentified pinniped or cetacean could accrue to any given stock
  captured in that gear in that area. The proposed take authorization is formulated as a five-year total; the annual average is used only for purposes
  of negligible impact analysis. We recognize that portions of an animal may not be taken in a given year.
\5\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/
  SI, which is presented in the SARs) (see Table 3). In parentheses, we provide the estimated maximum annual M/SI expressed as a percentage of this
  value.
\6\ A total of 4 takes of harbor porpoise by M/SI were authorized incidental to NWFSC research occurring offshore CA/OR/WA. However, two of these were
  expected to occur in the lower Columbia River. Therefore, a maximum of 4 takes could accrue to the Northern OR/WA Coast stock, while a maximum of only
  2 of those takes could potentially accrue to the remaining stocks of harbor porpoise. A total of 7 takes of harbor seal by M/SI were authorized
  incidental to NWFSC research occurring offshore CA/OR/WA. However, two of these were expected to occur in the lower Columbia River. Therefore, a
  maximum of 7 takes could accrue to the OR/WA Coast stock, while a maximum of only 5 of those takes could potentially accrue to the California stock of
  harbor seal. One take of each stock by M/SI was authorized incidental to AFSC research.
\7\ These ranges reflect that, as part of the overall take authorization for AFSC, a total of five takes of northern fur seals and Steller sea lions are
  expected to occur as a result specifically of International Pacific Halibut Commission longline operations. These five takes are considered as
  potentially accruing to either stock of northern fur seal or to either the eastern or western stocks of Steller sea lion; therefore, we assess the
  consequences of the take authorization for these stocks as though the maximum could occur for that stock.
\8\ Calculated on the basis of assumed relative abundance; i.e., we would expect on the basis of relative abundance in the study area that approximately
  98 percent of Level B harassment would accrue to the Pribilof Islands/Eastern Pacific stock and approximately two percent would accrue to the
  California stock.
\9\ Calculation of residual PBR for these stocks includes M/SI that occurred incidental to SWFSC. Assumed annual M/SI due to SWFSC is accounted for in
  this calculation through the proposed take authorization number. Therefore, the assumed effects of SWFSC research on these stocks is overestimated as
  the take numbers are incorporated to the calculation through both the reduction of ``available'' PBR due to past interactions as well as through the
  proposed take number that is then evaluated against the residual PBR.


                            Table 12--Annual Take Authorization in the AMLR, 2020-25
----------------------------------------------------------------------------------------------------------------
                                                   Estimated        Estimated
                                                annual  Level B  annual  Level B   Total annual     Percent of
                    Species                        harassment       harassment        Level B        estimated
                                                   (acoustic         (on-ice        harassment      population
                                                   exposure)       disturbance)    authorization
----------------------------------------------------------------------------------------------------------------
Southern right whale..........................                0                0               0             n/a
Humpback whale................................               25                0              25             0.3
Antarctic minke whale.........................                5                0               5             0.0
Fin whale.....................................               57                0              57             1.2
Blue whale....................................                0                0               0             n/a
Sperm whale...................................                5                0               5             0.0
Arnoux' beaked whale \1\......................                2                0               2               ?
Southern bottlenose whale.....................               10                0              10             0.0
Hourglass dolphin.............................               10                0              10             0.0
Killer whale..................................               10                0              10             0.0
Long-finned pilot whale.......................               21                0              21             0.0
Spectacled porpoise \1\.......................               10                0              10               ?
Antarctic fur seal............................              136              417             553             0.0
Southern elephant seal........................                2                2               4             0.0
Weddell seal..................................               74              226             300         \2\ 0.1
Crabeater seal................................              884            2,704           3,588         \2\ 0.1
Leopard seal..................................               22               68              90         \2\ 0.0
----------------------------------------------------------------------------------------------------------------
\1\ There is no available abundance information for these species. See ``Small Numbers Analyses'' below for
  further discussion.
\2\ A range is provided for these species' abundance. We have used the lower bound of the given range for
  calculation of these values.

    Analysis--To avoid repetition, the majority of our analysis applies 
to all the species listed in Tables 11-12, given that the anticipated 
effects of SWFSC's research activities on marine mammals are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are described independently in the analysis below.

[[Page 53634]]

    The majority of stocks that may potentially be taken by M/SI (18 of 
22) fall below the insignificance threshold (i.e., 10 percent of 
residual PBR), while an additional two stocks do not have current PBR 
values and therefore are evaluated using other factors. We first 
consider stocks expected to be affected only by behavioral harassment 
and those stocks that fall below the insignificance threshold. Next, we 
consider those stocks above the insignificance threshold (i.e., two 
stocks of bottlenose dolphin, Risso's dolphin, and short-finned pilot 
whale) and those without PBR values (the dwarf sperm whale, for which 
no information is available, and the Oregon and Washington coastal 
stock of harbor seal).
    As stated previously and described in detail in support of the 2015 
rule (80 FR 8166), we do not believe that SWFSC use of active acoustic 
sources has the likely potential to cause any effect exceeding Level B 
harassment of marine mammals. We have produced what we believe to be 
precautionary estimates of potential incidents of Level B harassment. 
There is a general lack of information related to the specific way that 
these acoustic signals, which are generally highly directional and 
transient, interact with the physical environment. Additionally, there 
is a lack of meaningful understanding of marine mammal perception of 
these signals. The procedure for producing these estimates, described 
in detail in ``Estimated Take Due to Acoustic Harassment,'' represents 
a reasonable and precautionary effort towards quantifying the potential 
for exposure to noise from these sources, which we equate herein with 
Level B harassment. The sources considered here have moderate to high 
output frequencies, generally short ping durations, and are typically 
focused (highly directional) to serve their intended purpose of mapping 
specific objects, depths, or environmental features. In addition, some 
of these sources can be operated in different output modes (e.g., 
energy can be distributed among multiple output beams) that may lessen 
the likelihood of perception by and potential impacts on marine mammals 
in comparison with the quantitative estimates that guide our proposed 
take authorization. We also produced estimates of incidents of 
potential Level B harassment due to disturbance of hauled-out pinnipeds 
that may result from the physical presence of researchers in the 
Antarctic; these estimates are combined with the estimates of Level B 
harassment that may result from use of active acoustic devices.
    Here, we consider authorized Level B harassment take less than five 
percent of population abundance to be ``de minimis,'' and authorized 
Level B harassment taking between 5-15 percent as ``low.'' A 
``moderate'' amount of authorized taking by Level B harassment would be 
from 15-25 percent, and ``high'' above 25 percent. Of the 53 stocks 
that may be subject to Level B harassment, the level of taking proposed 
for authorization would represent a de minimis impact for 43 stocks and 
a low impact for an additional four stocks. We do not consider these 
impacts further for these 47 stocks.
    The level of taking by Level B harassment would represent a 
moderate impact on three additional stocks: The southern resident stock 
of killer whales and Morro Bay and Monterey Bay stocks of harbor 
porpoise. However, the values calculated for proportion of population 
potentially affected assume that all estimated takes species-wide would 
accrue to each of the potentially affected stocks. In the absence of 
information to better refine stock-specific values, this worst-case 
proportion is an appropriate way to evaluate whether an amount of 
taking is greater than small numbers. For purposes of determining 
whether the total impacts to a stock represent no greater than a 
negligible impact, however, these values are overly conservative. We 
know that a majority of SWFSC use of active acoustic systems will not 
be concentrated in either of Morro Bay or Monterey Bay and, therefore, 
we conclude that the actual significance of taking by Level B 
harassment for these stocks of harbor porpoise will likely be 
significantly less than ``moderate.'' Similarly, the only potential 
avenue for effects to southern resident killer whales would be during 
the time when whales are foraging in coastal waters. Considering that 
whales are present in coastal waters for relatively brief portions of 
the year and that SWFSC research has limited overlap with the whales' 
relatively shallow foraging grounds in coastal waters, we again 
conclude that actual significance of any potential acoustic exposure 
for the stock would be less than moderate. Therefore, we do not 
consider these stocks further. For an additional three stocks (Arnoux' 
beaked whale and spectacled porpoise in Antarctica and dwarf sperm 
whales in the CCE whale), there is no abundance estimate upon which to 
base a comparison. However, we note that the anticipated number of 
incidents of take by Level B harassment are very low (2 and 10 for the 
Antarctic species, respectively, and 213 combined for both stocks of 
Kogia spp.) and likely represent a de minimis impact on these stocks.
    As described previously, there is some minimal potential for 
temporary effects to hearing for certain marine mammals, but most 
effects would likely be limited to temporary behavioral disturbance. 
Effects on individuals that are taken by Level B harassment will likely 
be limited to reactions such as increased swimming speeds, increased 
surfacing time, or decreased foraging (if such activity were 
occurring), which are all reactions that are considered to be of low 
severity (e.g., Ellison et al., 2012). Individuals may move away from 
the source if disturbed; but, because the source is itself moving and 
because of the directional nature of the sources considered here, there 
is unlikely to be even temporary displacement from areas of 
significance and any disturbance would be of short duration. Although 
there is no information on which to base any distinction between 
incidents of harassment and individuals harassed, the same factors, in 
conjunction with the fact that SWFSC survey effort is widely dispersed 
in space and time, indicate that repeated exposures of the same 
individuals would be very unlikely. For these reasons, we do not 
consider the proposed 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, 
including those for which no abundance estimate is available.
    Similarly, disturbance of pinnipeds on haul-outs by researchers 
(expected for Antarctic pinnipeds) are expected to be infrequent and 
cause only a temporary disturbance on the order of minutes. Monitoring 
results from other activities involving the disturbance of pinnipeds 
and relevant studies of pinniped populations that experience more 
regular vessel disturbance indicate that individually significant or 
population level impacts are unlikely to occur. When considering the 
individual animals likely affected by this disturbance, only a small 
fraction of the estimated population abundance of the affected stocks 
would be expected to experience the disturbance.
    For Risso's dolphin, short-finned pilot whale, and the offshore 
stock of bottlenose dolphin, maximum total potential M/SI due to NMFS' 
fisheries research activity (SWFSC, NWFSC, and AFSC combined) is 
approximately 12, 24, and 30 percent of residual PBR, respectively. For 
example, PBR for Risso's dolphin is currently set at 46

[[Page 53635]]

and the annual average of known ongoing anthropogenic M/SI is 3.7, 
yielding a residual PBR value of 42.3. The maximum combined annual 
average M/SI incidental to NMFS fisheries research activity is 5, or 
11.8 percent of residual PBR. The only known source of other 
anthropogenic mortality for these species is in commercial fisheries. 
For the Risso's dolphin and offshore stock of bottlenose dolphin, such 
take is considered to be insignificant and approaching zero mortality 
and serious injury. This is not the case for the short-finned pilot 
whale; however, the annual take from fisheries (1.2) and from NMFS's 
fisheries research (0.8) are both very low. There are no other factors 
that would lead us to believe that take by M/SI of 24 percent of 
residual PBR would be problematic for this species.
    For the California coastal stock of bottlenose dolphin, maximum 
total potential M/SI due to NMFS' fisheries research activity (SWFSC, 
NWFSC, and AFSC combined) is approximately 114 percent of residual PBR. 
Although the maximum annual take by M/SI is low (0.8), the residual PBR 
is also low (0.7). (Note that there is no take by M/SI authorized for 
this stock other than for SWFSC activities.) Here we provide additional 
detail regarding the available information for the coastal stock of 
bottlenose dolphin and explain our conclusion that the calculated 
proportion of residual PBR presents an unrealistically conservative 
assessment of the potential impacts to the stock due to SWFSC fisheries 
research activity. First, the available information indicates that the 
PBR value is biased low. PBR is calculated in consideration of the 
minimum population size which, for coastal bottlenose dolphins, 
represents the minimum number of individually identifiable animals 
documented during mark-recapture surveys in 2009-11 (Carretta et al., 
2017). This number (346 animals) represents the minimum abundance, but 
estimates of population abundance resulting from the 2009-11 study 
range from 411-564 animals (Carretta et al., 2017). Even these higher 
abundance estimates represent marked animals only, and exclude the 
approximately 40 percent of animals that are not individually 
recognizable (Weller et al., 2016). In addition, the estimates based on 
the 2009-11 study were the highest ever for the population and included 
a high proportion (~75 percent) of previously uncatalogued dolphins 
(Weller et al., 2016). The number of individually identifiable animals 
from 2009-11 exceeded previous estimates for the abundance of the 
entire marked population. These facts suggest that the stock may have 
grown in the ten years since conclusion of the last abundance study. 
Finally, although the stock is confined to U.S. waters for management 
purposes, the biological stock is transboundary and an unknown 
additional number of dolphins are likely found in Mexico. Regarding 
anthropogenic M/SI that is assumed to be ongoing, current estimates are 
based on scant data. With 9 percent observer coverage in the coastal 
halibut/yellowtail gillnet fishery during 2010-14, no entanglements 
were observed, and none have been observed since 2003 (Carretta et al., 
2017). The basis for the assumption that a minimum of 1.6 dolphins are 
killed annually in fisheries was the discovery of two carcasses with 
evidence of entanglement from 2010-14. In addition, during this same 
period, one dolphin was found floating under a U.S. Navy marine mammal 
program dolphin pen enclosure dock and was assumed to have become 
entangled in the net curtain, and another dolphin became entrapped and 
drowned in a sea otter research net. Both of these incidents could 
rightly be considered as unpredictable occurrences with little 
likelihood of recurring. However, they add 0.4 animals to the assumed 
amount of ongoing annual anthropogenic M/SI. None of NMFS' fisheries 
research activities on the west coast have ever resulted in an 
interaction with bottlenose dolphins. In summary, the available 
information leads us to conclude that the PBR value for the stock is 
likely unrealistically low and that the assumed annual anthropogenic M/
SI value may be higher than is actually occurring. Therefore, we 
preliminarily find that the potential total take of coastal bottlenose 
dolphin proposed for authorization here represents a negligible impact 
on the stock.
    PBR is unknown for harbor seals on the Oregon and Washington 
coasts. The Oregon/Washington coast stock of harbor seal was considered 
to be stable following the most recent abundance estimates (in 1999, 
stock abundance estimated at 24,732). However, a Washington Department 
of Fish and Wildlife expert (S. Jeffries) stated an unofficial 
abundance of 32,000 harbor seals in Washington (Mapes, 2013). 
Therefore, it is reasonable to assume that at worst, the stocks have 
not declined since the last abundance estimates. Ongoing anthropogenic 
mortality is estimated at 10.6 harbor seals per year. Therefore, we 
reasonably assume that the maximum potential annual M/SI incidental to 
NMFS' fisheries research activities (5.2) is a small fraction of any 
sustainable take level that might be calculated for the stock.
    PBR is also undetermined for the dwarf sperm whale. However, a PBR 
of 19.2 is calculated for the pygmy sperm whale, and there are no 
additional known sources of anthropogenic M/SI for Kogia spp. Although 
it is possible that there are fewer dwarf sperm whales than pygmy sperm 
whales in the CCE, we reasonably assume that the maximum potential 
annual M/SI incidental to NMFS' fisheries research activities (0.6) is 
a small fraction of any sustainable take level that might be calculated 
for the stock.
    In summary, our negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality from the use of active acoustic devices may reasonably be 
considered discountable; (2) the anticipated incidents of Level B 
harassment from the use of active acoustic devices and physical 
disturbance of pinnipeds consist of, at worst, temporary and relatively 
minor modifications in behavior; (3) the predicted number of incidents 
of potential mortality are at insignificant levels for a majority of 
affected stocks; (4) consideration of additional factors for Risso's 
dolphin, short-finned pilot whale, and the offshore stock of bottlenose 
dolphin do not reveal cause for concern; (5) total maximum potential M/
SI incidental to NMFS fisheries research activity for coastal 
bottlenose dolphin, considered in conjunction with other sources of 
ongoing mortality and in context of the available information regarding 
stock abundance, presents only a minimal incremental additional to 
total M/SI; (6) available information regarding stocks for which no 
current PBR estimate is available indicates that total maximum 
potential M/SI is sustainable; and (7) the presumed efficacy of the 
planned mitigation measures in reducing the effects of the specified 
activity to the level of least practicable adverse impact. In 
combination, we believe that these factors demonstrate that the 
specified activity will have only short-term effects on individuals 
(resulting from Level B harassment) and that the total level of taking 
will not impact rates of recruitment or survival sufficiently to result 
in population-level impacts.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation

[[Page 53636]]

measures, we preliminarily find that the total marine mammal take from 
the proposed activities will have a negligible impact on the affected 
marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(A) of the MMPA for specified 
activities. The MMPA does not define small numbers and so, in practice, 
where estimated numbers are available, NMFS compares the number of 
individuals taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. 
Additionally, other qualitative factors may be considered in the 
analysis, such as the temporal or spatial scale of the activities.
    Please see Tables 11 and 12 for information relating to this small 
numbers analysis. The total amount of taking proposed for authorization 
is less than five percent for a majority of stocks, and the total 
amount of taking proposed for authorization is less than one-third of 
the stock abundance for all stocks.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by these actions. Therefore, we have determined that the total taking 
of affected species or stocks would not have an unmitigable adverse 
impact on the availability of such species or stocks for taking for 
subsistence purposes.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
SWFSC fisheries research survey operations would 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 proposed rule are 
designed to provide OPR with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. OPR and the 
SWFSC will meet annually to discuss the monitoring reports and current 
science and whether mitigation or monitoring modifications are 
appropriate. The use of adaptive management allows OPR to consider new 
information from different sources to determine (with input from the 
SWFSC regarding practicability) on an annual or biennial basis if 
mitigation or monitoring measures should be modified (including 
additions or deletions). Mitigation measures could be modified if new 
data suggests that such modifications would have a reasonable 
likelihood of reducing adverse effects to marine mammals and if the 
measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

Endangered Species Act (ESA)

    There are multiple marine mammal species listed under the ESA with 
confirmed or possible occurrence in the proposed specified geographical 
regions (see Tables 3 and 4). The proposed authorization of incidental 
take pursuant to the SWFSC's specified activity would not affect any 
designated critical habitat. OPR has initiated consultation with NMFS's 
West Coast Regional Office under section 7 of the ESA on the 
promulgation of five-year regulations and the subsequent issuance of 
LOAs to SWFSC under section 101(a)(5)(A) of the MMPA. This consultation 
will be concluded prior to issuing any final rule.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the SWFSC request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare final rules and make final determinations on 
whether to issue the requested authorizations. This notice and 
referenced documents provide all environmental information relating to 
our proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
NMFS is the sole entity that would be subject to the requirements in 
these proposed regulations, and NMFS is not a small governmental 
jurisdiction, small organization, or small business, as defined by the 
RFA. Because of this certification, a regulatory flexibility analysis 
is not required and none has been prepared.
    This proposed rule does not contain a collection-of-information 
requirement subject to the provisions of the Paperwork Reduction Act 
(PRA) because the applicant is a Federal agency. Notwithstanding any 
other provision of law, no person is required to respond to nor shall a 
person be subject to a penalty for failure to comply with a collection 
of information subject to the requirements of the PRA unless that 
collection of information displays a currently valid OMB control 
number. These requirements have been approved by OMB under control 
number 0648-0151 and include applications for regulations, subsequent 
LOAs, and reports.

List of Subjects in 50 CFR Part 219

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

    Dated: August 10, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 219 is proposed 
to be amended as follows:

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

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

    Authority:  16 U.S.C. 1361 et seq.
0
2. Revise subpart A to part 219 to read as follows:

Subpart A--Taking Marine Mammals Incidental to Southwest Fisheries 
Science Center Fisheries Research

Sec.

[[Page 53637]]

219.1 Specified activity and specified geographical region.
219.2 Effective dates.
219.3 Permissible methods of taking.
219.4 Prohibitions.
219.5 Mitigation requirements.
219.6 Requirements for monitoring and reporting.
219.7 Letters of Authorization.
219.8 Renewals and modifications of Letters of Authorization.
219.9-219.10 [Reserved]

Subpart A--Taking Marine Mammals Incidental to Southwest Fisheries 
Science Center Fisheries Research


Sec.  219.1  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) 
and those persons it authorizes or funds to conduct activities on its 
behalf for the taking of marine mammals that occurs in the areas 
outlined in paragraph (b) of this section and that occurs incidental to 
research survey program operations.
    (b) The taking of marine mammals by SWFSC may be authorized in a 
Letter of Authorization (LOA) only if it occurs within the California 
Current Ecosystem (CCE) or Antarctic Marine Living Resources Ecosystem 
(AMLR).


Sec.  219.2   Effective dates.

    Regulations in this subpart are effective from October 31, 2020, 
through October 31, 2025.


Sec.  219.3   Permissible methods of taking.

    Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  219.7, the Holder of the LOA (hereinafter ``SWFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  219.1(b) by Level B harassment associated with 
use of active acoustic systems and physical or visual disturbance of 
hauled-out pinnipeds and by Level A harassment, serious injury, or 
mortality associated with use of fisheries research gear, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate LOA.


Sec.  219.4   Prohibitions.

    Notwithstanding takings contemplated in Sec.  219.1 and authorized 
by a LOA issued under Sec. Sec.  216.106 of this chapter and 219.7, no 
person in connection with the activities described in Sec.  219.1 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
of this chapter and 219.7;
    (b) Take any marine mammal not specified in such LOA;
    (c) Take any marine mammal specified in such LOA 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 species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  219.5   Mitigation requirements.

    When conducting the activities identified in Sec.  219.1(a), the 
mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 219.7 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions. (1) SWFSC shall take all necessary measures 
to coordinate and communicate in advance of each specific survey with 
the National Oceanic and Atmospheric Administration's (NOAA) Office of 
Marine and Aviation Operations (OMAO) or other relevant parties on non-
NOAA platforms to ensure that all mitigation measures and monitoring 
requirements described herein, as well as the specific manner of 
implementation and relevant event-contingent decision-making processes, 
are clearly understood and agreed upon.
    (2) SWFSC 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) SWFSC 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, SWFSC 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.
    (5) SWFSC shall implement handling and/or disentanglement protocols 
as specified in guidance provided to SWFSC survey personnel.
    (b) Trawl survey protocols. (1) SWFSC shall conduct trawl 
operations as soon as is practicable upon arrival at the sampling 
station.
    (2) SWFSC shall initiate marine mammal watches (visual observation) 
at least 15 minutes prior to beginning of net deployment (or for the 
amount of time to travel between stations if less than 15 minutes) but 
shall also conduct monitoring during any pre-set activities including 
CTD casts and plankton or bongo net hauls.
    (3) In the CCE, SWFSC shall implement the move-on rule mitigation 
protocol, as described in this paragraph. If one or more marine 
mammals, with the exception of baleen whales, are observed within 1 
nautical mile (nm) of the planned sampling location during the visual 
observation period, SWFSC shall move on to another sampling location. 
If, after moving on, marine mammals remain within 1 nm, the SWFSC shall 
move again or skip the station. SWFSC may use best professional 
judgment in making these decisions but may not elect to conduct trawl 
survey activity when marine mammals other than baleen whales remain 
within the 1-nm zone.
    (4) SWFSC 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, SWFSC shall take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If trawling operations have been suspended because of the 
presence of marine mammals, SWFSC may resume trawl operations when 
practicable only when the animals are believed to have departed the 1 
nm area. SWFSC may use best professional judgment in making this 
determination.
    (6) SWFSC 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.
    (7) SWFSC must install and use a marine mammal excluder device at 
all times when the Nordic 264 trawl net or any other net is used for 
which the device is appropriate.
    (8) SWFSC must install and use acoustic deterrent devices whenever 
any midwater trawl net is used, with two to four devices placed along 
the footrope and/or headrope of the net. SWFSC

[[Page 53638]]

must ensure that the devices are operating properly before deploying 
the net.
    (c) Pelagic longline survey protocols. (1) SWFSC shall deploy 
longline gear as soon as is practicable upon arrival at the sampling 
station.
    (2) SWFSC shall initiate marine mammal watches (visual observation) 
no less than 15 minutes (or for the duration of transit between 
locations, if shorter than 15 minutes) prior to both deployment and 
retrieval of longline gear.
    (3) SWFSC shall implement the move-on rule mitigation protocol, as 
described in this paragraph. If one or more marine mammals, with the 
exception of groups of five or fewer California sea lions, are observed 
within 1 nm of the planned sampling location during the visual 
observation period, SWFSC shall move on to another sampling location. 
If, after moving on, marine mammals remain within 1 nm, the SWFSC shall 
move again or skip the station. SWFSC may use best professional 
judgment in making these decisions but may not elect to conduct pelagic 
longline survey activity when animals remain within the 1-nm zone.
    (4) SWFSC 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, SWFSC shall take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, SWFSC may resume such 
operations when practicable only when the animals are believed to have 
departed the 1 nm area. SWFSC may use best professional judgment in 
making this decision.
    (6) SWFSC shall implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming.
    (d) Purse seine survey protocols. (1) SWFSC shall conduct purse 
seine operations as soon as is practicable upon arrival at the sampling 
station.
    (2) SWFSC shall conduct marine mammal watches (visual observation) 
prior to beginning of net deployment.
    (3) SWFSC shall implement the move-on rule mitigation protocol, as 
described in this paragraph for use of purse seine gear. If one or more 
killer whales or small cetaceans (i.e., dolphin or porpoise) or five or 
more pinnipeds are observed within 500 m of the planned sampling 
location before setting the purse seine gear, SWFSC 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 
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 area, 
the move-on rule mitigation protocol would begin anew. If, after moving 
on, marine mammals remain at risk of interaction, the SWFSC 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. SWFSC may use best 
professional judgment in making these decisions.
    (4) SWFSC shall maintain visual monitoring effort during the entire 
period of time that purse seine gear is in the water (i.e., throughout 
gear deployment, fishing, and retrieval). If marine mammals are sighted 
before the gear is fully removed from the water, SWFSC shall take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If purse seine operations have been suspended because of the 
presence of marine mammals, SWFSC may resume seine operations when 
practicable only when the animals are believed to have departed the 
area. SWFSC may use best professional judgment in making this 
determination.
    (6) If any cetaceans are observed in a purse seine net, SWFSC shall 
immediately open the net and free the animals.


Sec.  219.6   Requirements for monitoring and reporting.

    (a) Compliance coordinator. SWFSC shall designate a compliance 
coordinator who shall be responsible for ensuring compliance with all 
requirements of any LOA issued pursuant to Sec.  216.106 of this 
chapter and Sec.  219.7 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, hook and line, and purse 
seine gear, respectively; throughout deployment of gear and active 
fishing of research gears (not including longline soak time); prior to 
retrieval of longline gear; and throughout retrieval of all research 
gear.
    (2) Marine mammal watches shall be conducted by watch-standers 
(those navigating the vessel and/or other crew) at all times when the 
vessel is being operated.
    (3) SWFSC shall monitor any potential disturbance of pinnipeds on 
ice, paying particular attention to the distance at which different 
species of pinniped are disturbed. Disturbance shall be recorded 
according to a three-point scale representing increasing seal response 
to disturbance.
    (c) Training. (1) SWFSC must conduct annual training for all chief 
scientists and other personnel who may be responsible for conducting 
dedicated marine mammal visual observations to explain mitigation 
measures and monitoring and reporting requirements, mitigation and 
monitoring protocols, marine mammal identification, completion of 
datasheets, and use of equipment. SWFSC may determine the agenda for 
these trainings.
    (2) SWFSC 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.
    (3) SWFSC shall coordinate with NMFS' Northwest Fisheries Science 
Center (NWFSC) regarding surveys conducted in the CCE, such that 
training and guidance related to handling procedures and data 
collection is consistent.
    (d) Handling procedures and data collection. (1) SWFSC must 
implement standardized marine mammal handling, disentanglement, and 
data collection procedures. These standard procedures will be subject 
to approval by NMFS's Office of Protected Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, SWFSC shall collect necessary data to 
facilitate a serious injury determination.
    (3) SWFSC 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.
    (4) SWFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. SWFSC shall also answer a standard 
series of supplemental questions regarding the

[[Page 53639]]

details of any marine mammal interaction.
    (e) Reporting. (1) SWFSC 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) SWFSC shall submit an annual summary report to OPR.
    (i) The annual report must be submitted no later than 90 days 
following the end of a given year. SWFSC 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 predominant active 
acoustic sources were used;
    (B) Summary information regarding use of all hook and line, purse 
seine, and trawl gear, including number of sets, hook hours, tows, 
etc., specific to each gear;
    (C) Accounts of all incidents of significant marine mammal 
interactions, including circumstances of the event and descriptions of 
any mitigation procedures implemented or not implemented and why;
    (D) Summary information related to any on-ice disturbance of 
pinnipeds, including event-specific total counts of animals present, 
counts of reactions according to a three-point scale of response 
severity, and distance of closest approach;
    (E) A written evaluation of the effectiveness of SWFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any;
    (F) Final outcome of serious injury determinations for all 
incidents of marine mammal interactions where the animal(s) were 
released alive; and
    (G) A summary of all relevant training provided by SWFSC and any 
coordination with NWFSC or NMFS' West Coast Regional Office.
    (f) Reporting of injured or dead marine mammals--
    (1) In the event that personnel involved in the survey activities 
covered by the authorization discover an injured or dead marine mammal, 
SWFSC shall report the incident to OPR and to the appropriate West 
Coast Regional Stranding Coordinator as soon as feasible. The report 
must include the following information:
    (i) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Condition of the animal(s) (including carcass condition if 
the animal is dead);
    (iv) Observed behaviors of the animal(s), if alive;
    (v) If available, photographs or video footage of the animal(s); 
and
    (vi) General circumstances under which the animal was discovered.
    (2) In the event of a ship strike of a marine mammal by any vessel 
involved in the activities covered by the authorization, SWFSC shall 
report the incident to OPR and to the appropriate West Coast Regional 
Stranding Coordinator as soon as feasible. The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Vessel's speed during and leading up to the incident;
    (iv) Vessel's course/heading and what operations were being 
conducted (if applicable);
    (v) Status of all sound sources in use;
    (vi) Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    (vii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    (viii) Estimated size and length of animal that was struck;
    (ix) Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    (x) If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    (xi) Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    (xii) To the extent practicable, photographs or video footage of 
the animal(s).


Sec.  219.7   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, SWFSC must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, SWFSC may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, SWFSC must apply 
for and obtain a modification of the LOA as described in Sec.  219.8.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  219.8   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
219.7 for the activity identified in Sec.  219.1(a) shall be renewed or 
modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) OPR determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to 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

[[Page 53640]]

notice of proposed LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
219.7 for the activity identified in Sec.  219.1(a) may be modified by 
OPR under the following circumstances:
    (1) OPR may modify (including augment) the existing mitigation, 
monitoring, or reporting measures (after consulting with SWFSC 
regarding the practicability of the modifications) if doing so creates 
a reasonable likelihood of more effectively accomplishing the goals of 
the mitigation and monitoring set forth in the preamble for these 
regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from SWFSC's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) If OPR determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in LOAs issued pursuant to Sec. Sec.  216.106 of this 
chapter and 219.7, an LOA may be modified without prior notice or 
opportunity for public comment. Notice would be published in the 
Federal Register within thirty days of the action.


Sec.  Sec.  219.9-219.10   [Reserved]

[FR Doc. 2020-17848 Filed 8-27-20; 8:45 am]
BILLING CODE 3510-22-P