[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Rules and Regulations]
[Pages 3840-3872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27817]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 201020-0275]
RIN 0648-BJ71


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

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

ACTION: Final rule; notification of issuance of Letters of 
Authorization.

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SUMMARY: NMFS' Office of Protected Resources (OPR), upon request from 
NMFS' Southwest Fisheries Science Center (SWFSC), hereby issues 
regulations to govern the unintentional taking of marine mammals 
incidental to fisheries research conducted in multiple specified 
geographical regions over the course of five years. These regulations, 
which allow for the issuance of Letters of Authorization (LOA) for the 
incidental take of marine mammals during the described activities and 
specified timeframes, prescribe the permissible methods of taking and 
other means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, as well as requirements 
pertaining to the monitoring and reporting of such taking.

DATES:  Effective from January 15, 2021 through January 15, 2026.

ADDRESSES: A copy of SWFSC's application and supporting documents, as 
well as a list of the references cited in this document, may be 
obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-southwest-fisheries-science-center-fisheries-and. In 
case of problems accessing these documents, please call the contact 
listed below.

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

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory Action

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

Legal Authority for the Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to five years 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the Mitigation section), as 
well as monitoring and reporting requirements. Section 101(a)(5)(A) of 
the MMPA and the implementing regulations at 50 CFR part 216, subpart I 
provide the legal basis for issuing this rule containing five-year 
regulations, and for any subsequent LOAs. As directed by this legal 
authority, this rule contains mitigation, monitoring, and reporting 
requirements.

Summary of Major Provisions Within the Regulations

    Following is a summary of the major provisions of these regulations 
regarding SWFSC fisheries research activities. These measures include:
     Required monitoring of the sampling areas to detect the 
presence of marine mammals before deployment of certain research gear; 
and
     Required implementation of the mitigation strategy known 
as the ``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

[[Page 3841]]

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

Summary of Request

    On April 30, 2020, we received an adequate and complete request 
from SWFSC for authorization to take marine mammals incidental to 
fisheries research activities. On May 8, 2020 (85 FR 27388), we 
published a notice of receipt of SWFSC's application in the Federal 
Register, requesting comments and information related to the SWFSC 
request for thirty days. We did not receive any comments in response. 
We published a notice of proposed rulemaking in the Federal Register on 
August 28, 2020 (85 FR 53606) and requested comments and information 
from the public. Please see Comments and Responses, below.
    These regulations are the second consecutive five-year incidental 
take regulations issued in response to a petition from SWFSC. The 
initial regulations were finalized in 2015 and are effective through 
October 30, 2020 (80 FR 58982; September 30, 2015). Three Letters of 
Authorization (LOA) were issued to SWFSC pursuant to the regulations, 
related to SWFSC research survey activities in the California Current 
Ecosystem (CCE), the Eastern Tropical Pacific (ETP), and the Antarctic 
Marine Living Resources Ecosystem (AMLR). Information related to this 
previous rulemaking and required reporting submitted by SWFSC according 
to the terms of the LOAs may be found online at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-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 conducts fisheries research using pelagic trawl gear used at 
various levels in the water column, pelagic longlines with multiple 
hooks, purse seine gear, and other gear. If a marine mammal interacts 
with gear deployed by SWFSC, the outcome could potentially be Level A 
harassment, serious injury (i.e., any injury that will likely result in 
mortality), or mortality. However, there is not sufficient information 
upon which to base a prediction of what the outcome may be for any 
particular interaction. Therefore, SWFSC has pooled the estimated 
number of incidents of take resulting from gear interactions, and we 
have assessed the potential impacts accordingly. SWFSC also uses 
various active acoustic devices in the conduct of fisheries research, 
and use of these devices has the potential to result in Level B 
harassment of marine mammals. Level B harassment of pinnipeds hauled 
out on ice may also occur, in the Antarctic only, as a result of visual 
disturbance from vessels conducting SWFSC research.
    The SWFSC conducts fisheries research surveys in the CCE, ETP, and 
the AMLR. However, SWFSC does not plan to conduct research over the 
five-year period in the ETP. Therefore, these regulations address only 
the CCE and AMLR. In the CCE, SWFSC requested authorization to take 
individuals of 24 stocks by Level A harassment, serious injury, or 
mortality (hereafter referred to as M/SI) and of 38 stocks by Level B 
harassment. In the AMLR, SWFSC requested authorization to take 
individuals of fifteen species by Level B harassment. No takes by M/SI 
are anticipated in the AMLR. These regulations are effective for five 
years.

Description of the Specified Activity

Overview

    The SWFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. SWFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. Some 
surveys may be conducted onboard commercial fishing vessels or by 
cooperating scientists on non-NOAA vessels, but the SWFSC designs and 
executes the studies and funds vessel time. The SWFSC plans to 
administer and conduct approximately 18 survey programs over the five-
year period, within two separate research areas. Please see Table 1-2 
in SWFSC's application for details relating to the planned survey 
programs. The gear types used fall into several categories: Towed nets 
fished at various levels in the water column, longline and other hook 
and line gear, purse seine nets, and other gear. Only use of trawl 
nets, hook and line gear, and purse seine nets are likely to result in 
interaction with marine mammals. Many of these surveys also use active 
acoustic devices.
    The Federal government has a responsibility to conserve and protect 
living marine resources in U.S. waters and has also entered into a 
number of international agreements and treaties related to the 
management of living marine resources in international waters outside 
the United States. NOAA has the primary responsibility for managing 
marine finfish and shellfish species and their habitats, with that 
responsibility delegated within NOAA to NMFS.
    In order to direct and coordinate the collection of scientific 
information needed to make informed fishery management decisions, 
Congress created six regional fisheries science centers, each a 
distinct organizational entity and the scientific focal point within 
NMFS for region-based Federal fisheries-related research. This research 
is aimed at monitoring fish stock recruitment, abundance, survival and 
biological rates, geographic distribution of species and stocks, 
ecosystem process changes, and marine ecological research. The SWFSC is 
the research arm of NMFS in the southwest region of the United States. 
The SWFSC conducts research and provides scientific advice to manage 
fisheries and conserve protected species in the geographic research 
areas listed above and provides scientific information to support the 
Pacific Fishery Management Council and numerous other domestic and 
international fisheries management organizations.

Dates and Duration

    The specified activity may occur at any time during the five-year 
period of validity of the regulations. Dates and duration of individual 
surveys are inherently uncertain, based on congressional funding levels 
for the SWFSC, weather conditions, or ship contingencies. In addition, 
cooperative research is designed to provide

[[Page 3842]]

flexibility on a yearly basis in order to address issues as they arise. 
Some cooperative research projects last multiple years or may continue 
with modifications. Other projects only last one year and are not 
continued. Most cooperative research projects go through an annual 
competitive selection process to determine which projects should be 
funded based on proposals developed by many independent researchers and 
fishing industry participants. SWFSC survey activity does occur during 
most months of the year; however, trawl surveys typically occur during 
May through June and September and longline surveys are typically 
completed during June-July and September.

Specified Geographical Region

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

Detailed Description of Activities

    A detailed description of SWFSC's planned activities was provided 
in the notice of proposed rulemaking (85 FR 53606; August 28, 2020) and 
is not repeated here. No changes have been made to the specified 
activities described therein.

Comments and Responses

    We published a notice of proposed rulemaking in the Federal 
Register on August 28, 2020 (85 FR 53606) and requested comments and 
information from the public. During the 30-day comment period, we 
received comments from the Marine Mammal Commission (Commission) and 
from 6 private citizens. Of the latter, two comments expressed general 
opposition, two expressed general support, and two were not relevant to 
the proposed rulemaking. The remaining comments and our responses are 
provided here, and the comments have been posted online at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-southwest-fisheries-science-center-fisheries-and. Please see the 
Commission's comment letter for full rationale behind the Commission's 
recommendations, to which we respond below. In response to the 
comments, minor changes were made to the take number for southern 
elephant seals and to certain reporting requirements, as detailed 
below.
    The Commission noted that a 2015 requirement for SWFSC to report 
whether the move-on rule was waived for California sea lions was not 
included in the proposed rule. The Commission asserted that this 
information remains relevant (and would apply to purse seines in 
addition to longlines), and that it should be included as a requirement 
in the final rule. (See footnote 2 of the Commission's public comment 
letter.) NMFS concurs with this suggestion and has included these 
reporting requirements in the final rule.
    Comment--The Commission recommends that NMFS ensure that any 
criteria and guidance developed regarding de minimis acoustic sources 
consider the overall level of impacts and are used consistently across 
all action proponents and applications.
    Response--NMFS concurs with the Commission's recommendation and 
intends to use any such criteria and/or guidance consistently.
    Comment--The Commission recommends that NMFS require SWFSC to 
estimate the numbers of marine mammals that may be taken by Level B 
harassment due to sound exposure resulting from use of active acoustic 
sources based on the 120- rather than the 160-dB re 1 [mu]Pa threshold 
for non-impulsive, intermittent sources, including those sources whose 
primary operating frequency is above 180 kHz that have been shown to 
elicit behavioral responses above the 120-dB re 1 [mu]Pa threshold.
    Response--NMFS does not concur with the Commission's recommendation 
and does not adopt it. NMFS has addressed the Commission's 
recommendation on numerous occasions, and the Commission does not offer 
any substantive new points in support of its position. NMFS provided a 
detailed explanation of the reasons why the recommendation was not 
followed in response to the Commission's letter pertaining to proposed 
incidental take regulations for NMFS' Alaska Fisheries Science Center 
(84 FR 46788; September 5, 2019). We refer the Commission and the 
public to that explanation.
    Comment--The Commission recommends that NMFS prioritize updating 
its generic Level B harassment thresholds and formulate a strategy for 
developing thresholds for all types of sound sources and for 
incorporating new data regarding these thresholds as soon as possible.
    Response--NMFS concurs with the Commission's recommendation and 
agrees that this issue is a priority.
    Comment--The Commission recommends that NMFS increase the annual 
take by Level B harassment of southern elephant seals due to on-ice 
disturbance from one per year to five per year in the final rule, in 
order to account for the potential that smaller groups could be 
present.
    Response--NMFS concurs with the recommendation and has increased 
the annual take number as suggested. See Table 9.
    Comment--The Commission recommends that NMFS include in all 
proposed and final incidental harassment authorizations and rules, 
including the SWFSC's final rule, the explicit requirement to cease 
activities if a marine mammal is injured or killed by vessel strike, 
until NMFS reviews the circumstances involving any injury or death that 
is likely attributable to the activities and determines what additional 
measures are necessary to minimize additional injuries or deaths.
    Response--NMFS does not anticipate, and has not authorized, any 
takes associated with vessel strikes. Further, in the event of a vessel 
strike, SWFSC is required both to collect and report an extensive suite 
of information that NMFS has identified in order to evaluate the event, 
and to notify OPR and the West Coast Regional Stranding Coordinator as 
soon as feasible. At that point, as the Commission suggests, NMFS would 
work with SWFSC to determine whether there are additional mitigation 
measures or modifications that could further reduce the likelihood of 
vessel strike for the activities. However, given the very low 
likelihood of a vessel strike occurring, the protective value of 
ceasing operations while NMFS and SWFSC discuss potential additional 
mitigations in order to avoid a second highly unlikely event is 
unclear, while a requirement for project activities to cease would not 
be practicable for a vessel that is operating on the open water. 
Therefore, NMFS does not concur that the measure is warranted, and we 
have not included this requirement in the authorization. NMFS retains 
authority to modify the LOA and cease all activities immediately based 
on a vessel strike

[[Page 3843]]

and will exercise that authority if warranted.
    With respect to the Commission's recommendation that NMFS include 
these requirements in all proposed and final incidental take 
authorizations, NMFS determines the requirements for mitigation 
measures in each authorization based on numerous case-specific factors, 
including the practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity. As NMFS must make 
these determinations on a case-by-case basis, we therefore do not agree 
with this recommendation.
    Comment--The Commission recommends that NMFS (1) include a specific 
condition either in section 219.5 of the final rule or in any LOA 
issued under the final rule requiring SWFSC to cease its activities and 
consult with NMFS if the number of authorized takes has been met for 
any species and (2) reinforce that SWFSC should keep a running tally of 
the numbers of species-specific M/SI and on-ice Level B harassment 
takes and the line-kilometers surveyed to ensure that the authorized 
taking limits are not exceeded.
    Response--NMFS does not concur with the recommendation and does not 
adopt it. The LOA stipulates that the allowable taking is limited to 
the authorized numbers specified in the LOA, and states that any taking 
exceeding the authorized numbers (or any taking of a species for which 
take is not authorized) is prohibited and may result in the 
modification, suspension, or revocation of the LOA. Additional, 
redundant language is not necessary. Therefore, while we agree that 
SWFSC must ensure they do not exceed authorized takes, we do not agree 
that the recommended requirements are helpful. SWFSC is responsible for 
ensuring that it does not operate in violation of an issued LOA.
    Comment--The Commission recommends that NMFS require SWFSC to 
include in each annual monitoring report (1) the distance at which a 
pinniped is disturbed and the closest point of approach for each 
disturbance event; (2) the numbers of takes differentiated by species 
and age class for each disturbance event; and (3) the raw sightings 
data in each annual monitoring report.
    Response--NMFS concurs with the recommendation and has included the 
suggested reporting requirements in the final rule. See Sec.  
219.6(e)(2)(ii)(D) of the final regulations.
    Comment--Regarding the negligible impact analysis provided for the 
California coastal stock of bottlenose dolphin, the Commission states 
that NMFS should apply the information contained in the current stock 
assessment reports when making negligible impact determinations unless 
reliable, relevant new information that has yet to be fully assessed 
and incorporated into the reports warrants some other treatment, and 
additionally recommends that NMFS authorize a smaller number of takes 
by M/SI than proposed, such that total estimated M/SI does not exceed 
the potential biological removal (PBR) value.
    Response--NMFS does not concur with the Commission's recommendation 
to reduce the authorized take number for the California coastal stock 
of bottlenose dolphin, or the underlying rationale, and does not adopt 
it. We also clarify that the proposed annual take number for the stock 
(0.8) does not exceed the PBR value of 2.7. The annual take number does 
exceed the residual PBR value of 0.7. (See Table 1, Table 9, and 
Negligible Impact Analysis and Determinations for details of the 
analysis.) The Commission suggests first that application of NMFS' new 
criteria for negligible impact determinations (NID) under section 
101(a)(5)(E) of the MMPA (NMFS, 2020) would show the proposed 
authorized take number to not be negligible, and that NMFS should 
explain its rationale if it believes that the criteria are not relevant 
when assessing M/SI that occurs in contexts other than commercial 
fishing. Indeed, application of those criteria to NIDs made under 
section 101(a)(5)(A) of the MMPA may not be appropriate. Section 
101(a)(5)(E) only pertains to marine mammal stocks designated as 
depleted because of their listing under the ESA, and the corresponding 
criteria were developed in that context. The California coastal stock 
of bottlenose dolphin is not designated as a depleted stock. NMFS has 
made no decisions on whether and how to apply the 101(a)(5)(E) criteria 
to other negligible impact determinations under section 101(a)(5)(A). 
Therefore, the appropriate negligible impact factor may be different 
than those specified in the 101(a)(5)(E) criteria. Applicability of 
those criteria to stocks not designated as depleted was not considered 
in development of the criteria and is not addressed by the Commission. 
Therefore, we reject the suggestion that the criteria may be used to 
show deficiency in NMFS' NID for the California coastal stock of 
bottlenose dolphin. Please see the discussion of use of PBR generally 
for section 101(a)(5)(A) authorizations below in the Negligible Impact 
Analysis and Determinations section.
    With regard to the Commission's recommendation to apply the 
information contained in the current stock assessment reports, NMFS 
agrees and has done so, as shown in the Negligible Impact Analysis and 
Determinations section of this preamble. In addition to considering 
quantitative information, i.e., the estimate of annual M/SI and the 
stock's PBR value, we also consider other relevant factors discussed in 
the stock assessment report (SAR), such as the nature of the recorded 
M/SI events that contribute to the estimate and the information that is 
available regarding stock abundance. NMFS disagrees with the 
Commission's characterization of the discussion of these factors as 
``downplaying'' the information in the SAR and notes the Commission's 
apparent agreement with the validity of these points, i.e., that the 
stock abundance is likely negatively biased and that some of the 
specific incidents contributing to the SAR estimate of annual M/SI are 
unlikely to recur. It is appropriate to perform a negligible impact 
analysis by considering the quantitative information available in the 
SAR in context with other, qualitative information. Although not 
currently applicable to 101(a)(5)(A) NID evaluations, the 101(a)(5)(E) 
criteria explicitly address this, stating ``There may be circumstances, 
such as when the M/SI estimate is slightly below or slightly above the 
negligible impact threshold(s), where the analyst may deviate from the 
determination that would be dictated by strictly adhering to the 
[negligible impact] thresholds. Such deviations may be due to the 
consideration of additional factors affecting the likelihood or impact 
of the incidental M/SI [. . . .] In such circumstances, NMFS should 
provide the rationale in the document supporting the NID.'' In this 
case, NMFS has described the available quantitative information, 
evaluated additional relevant information, and provided its rationale 
in making a finding of negligible impact.
    Finally, the Commission does not suggest that the level of taking 
proposed for authorization is unrealistically high but, nevertheless, 
recommends that it be reduced in order to, in the Commission's 
estimation, make a finding of negligible impact. It would be improper 
to lower arbitrarily NMFS' best estimate of anticipated taking in order 
to make the necessary finding. Rather, that best estimate must be 
evaluated in context of all relevant

[[Page 3844]]

available information and, if the estimated taking is found to be 
likely to cause greater than a negligible impact on the affected 
species or stock, additional mitigation that may reduce the amount of 
anticipated taking may be considered. In this case, NMFS has considered 
the amount of anticipated taking in context of all relevant available 
information and has made the necessary finding of negligible impact.

Description of Marine Mammals in the Area of the Specified Activity

    We have reviewed SWFSC's species descriptions--which summarize 
available information regarding status and trends, distribution and 
habitat preferences, behavior and life history, and auditory 
capabilities of the potentially affected species--for accuracy and 
completeness and refer the reader to Sections 3 and 4 of SWFSC's 
application, instead of reprinting the information here. Additional 
information regarding population trends and threats may be found in 
NMFS' SARs (www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), and more general information about 
these species (e.g., physical and behavioral descriptions) may be found 
on NMFS' website (www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence in 
the specified geographical regions where SWFSC plans to continue the 
specified activities and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and PBR, where known. For taxonomy, we follow Committee on Taxonomy 
(2020). PBR, defined by the MMPA as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population, is discussed in greater detail later in this 
document (see Negligible Impact Analysis and Determinations).
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that the 
stock comprises. For some species, this geographic area may extend 
beyond U.S. waters. Survey abundance (as compared to stock or species 
abundance) is the total number of individuals estimated within the 
survey area, which may or may not align completely with a stock's 
geographic range as defined in the SARs. These surveys may also extend 
beyond U.S. waters.
    All stocks occurring in the CCE are assessed in either NMFS' U.S. 
Alaska SARs or U.S. Pacific SARs. All values presented in Table 1 are 
the most recent available at the time of writing and are available in 
the 2019 SARs (Carretta et al., 2020; Muto et al., 2020). Antarctic 
stocks are not generally defined by NMFS, and information relating to 
species occurring in the AMLR is lacking relative to those occurring in 
the CCE. For species occurring in AMLR, we provide International Union 
for the Conservation of Nature (IUCN) status. The IUCN systematically 
assesses the relative risk of extinction for terrestrial and aquatic 
plant and animal species via a classification scheme using five 
designations, including three threatened categories (Critically 
Endangered, Endangered, and Vulnerable) and two non-threatened 
categories (Near Threatened and Least Concern) (www.iucnredlist.org/; 
accessed June 22, 2020). These assessments are generally made relative 
to the species' global status, and therefore may have limited 
applicability when marine mammal stocks are defined because we analyze 
the potential population-level effects of the specified activity to the 
relevant stock. However, where stocks are not defined, IUCN status can 
provide a useful reference.

California Current

    In the CCE, 33 species (with 40 managed stocks) are considered to 
have the potential to co-occur with SWFSC activities. Species that 
could potentially occur in the research area but are not expected to 
have the potential for interaction with SWFSC research gear or that are 
not likely to be harassed by SWFSC's use of active acoustic devices are 
described briefly but omitted from further analysis. These include 
extralimital species, which are species that do not normally occur in a 
given area but for which there are one or more occurrence records that 
are considered beyond the normal range of the species. Species 
considered to be extralimital here include the North Pacific right 
whale (Eubalaena japonica) and the Bryde's whale (Balaenoptera edeni 
brydei). In addition, the sea otter is found in coastal waters, with 
the southern sea otter (Enhydra lutris nereis) found in California and 
the northern (or eastern) sea otter (E. l. kenyoni; Washington stock 
only) found in Washington. However, sea otters are managed by the U.S. 
Fish and Wildlife Service and are not considered further in this 
document. Most survey activity occurs offshore and is therefore less 
likely to interact with coastal species such as harbor porpoise, the 
coastal stock of bottlenose dolphin, or gray whales (during the 
northbound migration), although these species are considered further in 
this document. SWFSC does not conduct research activities in the inland 
waters of Washington. Therefore, stocks occurring solely in those 
waters (i.e., harbor porpoise and harbor seal) are not addressed 
herein.

                           Table 1--Marine Mammals Potentially Present in the Vicinity of SWFSC Research Activities in the CCE
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         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 (0.05; 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).

[[Page 3845]]

 
    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        0.6
                                                                                                             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.              California Coastal.....  -; N                 2014).                       2.7      >=2.0
                                                                                                            453 (0.06; 346; 2011).
    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).
    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\.                    -;N                 300 (0.1; 276; 2012)..        2.8          0
                                                               ENP Offshore...........  E/D; Y              75 (n/a; 2018)........       0.13          0
                                                               ENP Southern Resident..
    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                4,255 (0.56; 2,737;            66      >=0.4
                                       vomerina.                                                             2012).
                                                               Monterey Bay...........  -; N                3,455 (0.58; 2,197;            23      >=0.2
                                                                                                             2013).
                                                               San Francisco-Russian    -; N                7,524 (0.57; 4,801;            48      >=0.6
                                                                River.                                       2017).
                                                               Northern CA/Southern OR  -; N                24,195 (0.4; 17,447;          349      >=0.2
                                                                                                             2016).
                                                               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        112
                                       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.

[[Page 3846]]

 
\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 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., 2020).

    Prior to 2016, humpback whales were listed under the ESA as an 
endangered species worldwide. Following a 2015 global status review 
(Bettridge et al., 2015), NMFS established 14 distinct population 
segments (DPS) with different listing statuses (81 FR 62259; September 
8, 2016) pursuant to the ESA. The DPSs that occur in U.S. waters do not 
necessarily equate to the existing stocks designated under the MMPA and 
shown in Table 1. Because MMPA stocks cannot be portioned, i.e., parts 
managed as ESA-listed while other parts managed as not ESA-listed, 
until such time as the MMPA stock delineations are reviewed in light of 
the DPS designations, NMFS considers the existing humpback whale stocks 
under the MMPA to be endangered and depleted for MMPA management 
purposes (e.g., selection of a recovery factor, stock status).
    Within U.S. West Coast waters, three current DPSs may occur: The 
Hawaii DPS (not listed), Mexico DPS (threatened), and Central America 
DPS (endangered). According to Wade et al. (2016), whales off of 
Washington are most likely to be from the Hawaii DPS (52.9 percent), 
but are almost equally likely to be from the Mexico DPS (41.9 percent), 
and could also be from the Central America DPS (14.7 percent). Off of 
Oregon and California, whales are most likely to be from the Mexico DPS 
(89.6 percent), with a 19.7 percent probability of an encountered whale 
being from the Central America DPS. Note that these probabilities 
reflect the upper limit of the 95 percent confidence interval of the 
probability of occurrence; therefore, numbers may not sum to 100 
percent for a given area.
    Take Reduction Planning--Take reduction plans are designed to help 
recover and prevent the depletion of strategic marine mammal stocks 
that interact with certain U.S. commercial fisheries, as required by 
Section 118 of the MMPA. The immediate goal of a take reduction plan is 
to reduce, within six months of its implementation, the M/SI of marine 
mammals incidental to commercial fishing to less than the PBR level. 
The long-term goal is to reduce, within five years of its 
implementation, the M/SI of marine mammals incidental to commercial 
fishing to insignificant levels, approaching a zero serious injury and 
mortality rate, taking into account the economics of the fishery, the 
availability of existing technology, and existing state or regional 
fishery management plans. Take reduction teams are convened to develop 
these plans.
    For marine mammals in the CCE, there is currently one take 
reduction plan in effect (Pacific Offshore Cetacean Take Reduction 
Plan). The goal of this plan is to reduce M/SI of several marine mammal 
stocks incidental to the California thresher shark/swordfish drift 
gillnet fishery (CA DGN). A team was convened in 1996 and a final plan 
produced in 1997 (62 FR 51805; October 3, 1997). Marine mammal stocks 
of concern initially included the California, Oregon, and Washington 
stocks for all CCE beaked whales, 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.

[[Page 3847]]

Strandings in Oregon and Washington became elevated starting in 2019 
and are five times higher than the historical average. Findings from 
the majority of stranded animals include malnutrition with secondary 
bacterial and parasitic infections, and the UME has been attributed to 
ecological factors. For more information, please visit: 
www.fisheries.noaa.gov/national/marine-life-distress/2015-2020-guadalupe-fur-seal-unusual-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 
September 2, 2020, there have been a total of 378 whales reported in 
the event, with approximately 168 dead whales in Mexico, 194 whales in 
the United States (53 in California; 9 in Oregon; 46 in Washington, 86 
in Alaska), and 16 whales in British Columbia, Canada. For the United 
States, the historical 18-year 5-month average (Jan-May) is 14.8 whales 
for the four states for this same time-period. Several dead whales have 
been emaciated with moderate to heavy whale lice (cyamid) loads. 
Necropsies have been conducted on a subset of whales with additional 
findings of vessel strike in three whales and entanglement in one 
whale. In Mexico, 50-55 percent of the free-ranging whales observed in 
the lagoons in winter have been reported as ``skinny'' compared to the 
annual average of 10-12 percent ``skinny'' whales normally seen. The 
cause of the UME is as yet undetermined. For more information, please 
visit: www.fisheries.noaa.gov/national/marine-life-distress/2019-2020-gray-whale-unusual-mortality-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.

      Table 2--Marine Mammals Potentially Present in the Vicinity of SWFSC Research Activities in the AMLR
----------------------------------------------------------------------------------------------------------------
                                                                           ESA/MMPA/IUCN status   Abundance (CV)
         Common name            Scientific name          Stock \2\                  \3\                \4\
----------------------------------------------------------------------------------------------------------------
                      Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Balaenidae (right
 whales):
    Southern right whale.....  Eubalaena         ........................  E/D/LC                1,755
                                australis.                                                        (0.62).\5\
Family Balaenopteridae
 (rorquals):
    Humpback whale...........  Megaptera         ........................  E/D/LC                9,484
                                novaeangliae                                                      (0.28).\5\
                                australis.
    Antarctic minke whale....  Balaenoptera      ........................  -/NT                  18,125
                                bonaerensis.                                                      (0.28).\5\
    Fin whale................  B. physalus       ........................  E/D/VU                4,672
                                quoyi.                                                            (0.42).\5\
    Blue whale...............  B. musculus       ........................  E/D/EN                1,700 (95% CI
                                intermedia.                                                       860-2,900).\6\
----------------------------------------------------------------------------------------------------------------
                        Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
----------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale..............  Physeter          ........................  E/D/VU                12,069
                                macrocephalus.                                                    (0.17).\7\
Family Ziphiidae (beaked
 whales):
    Arnoux' beaked whale.....  Berardius         ........................  -/DD                  Unknown.
                                arnuxii.
    Southern bottlenose whale  Hyperoodon        ........................  -/LC                  53,743
                                planifrons.                                                       (0.12).\8\
Family Delphinidae:
    Hourglass dolphin........  Lagenorhynchus    ........................  -/LC                  144,300
                                cruciger.                                                         (0.17).\9\
    Killer whale.............  Orcinus orca \1\  ........................  -/DD                  24,790
                                                                                                  (0.23).\8\
    Long-finned pilot whale..  Globicephala      ........................  -/LC                  200,000
                                melas edwardii.                                                   (0.35).\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                  500,000-1,000,0
                                weddellii.                                                        00.\12\
    Crabeater seal...........  Lobodon           ........................  -/LC                  5,000,000-10,00
                                carcinophaga.                                                     0,000.\12\
    Leopard seal.............  Hydrurga          ........................  -/LC                  222,000-440,000
                                leptonyx.                                                         .\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.

[[Page 3848]]

 
\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 3.

                  Table 3--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 1. Of the 27 
cetacean species that may be present, six are classified as low-
frequency cetaceans (i.e., all mysticete species), seventeen are 
classified as 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 2. Of the twelve cetacean 
species that may be present, five are classified as low-frequency 
cetaceans (i.e., all mysticete species), five are classified as mid-
frequency cetaceans (i.e., all delphinid and ziphiid species [excluding 
the hourglass dolphin] and the sperm whale), and two are classified as 
high-frequency cetaceans (i.e., the hourglass dolphin and spectacled 
porpoise).

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

    Detailed descriptions of the potential effects of the various 
elements of the SWFSC's specified activity on marine mammals and their 
habitat were provided in association with the 2015 SWFSC rulemaking (80 
FR 8166; February 15, 2015). Additionally, detailed descriptions of the 
potential effects of similar specified activities have also been 
provided in other Federal Register notices (e.g., 81 FR 38516; 83 FR 
37638; 84 FR 6576), and section 7 of SWFSC's application provides a 
discussion of the potential effects of their specified activity, which 
we have reviewed for accuracy and completeness. No significant new 
information is available, and these discussions provide the necessary 
adequate and relevant information regarding the potential effects of 
SWFSC's specified activity on marine mammals and their habitat. 
Therefore, we refer the reader to these documents rather than repeating 
the information here. The referenced information includes a summary and 
discussion of the ways that components of the specified activity (e.g., 
gear deployment, use of active acoustic sources, visual disturbance) 
may impact marine mammals and their habitat.

[[Page 3849]]

    As stated previously, the use of certain research gears, including 
trawl nets, hook and line gear, and purse seine nets, has the potential 
to result in interaction with marine mammals. In the event of a marine 
mammal interaction with research gear, injury, serious injury, or 
mortality may result from entanglement or hooking. Exposure to sound 
through the use of active acoustic systems for research purposes may 
result in Level B harassment. However, as detailed in the previously 
referenced discussions, Level A harassment in the form of permanent 
threshold shift (PTS) is extremely unlikely to occur, and we consider 
such effects discountable. Finally, in the Antarctic only, it is 
expected that hauled pinnipeds may be disturbed by approaching 
researchers such that Level B harassment could occur. Ship strike is 
not a reasonably anticipated outcome of SWFSC research activities, 
given the small amount of distance covered by research vessels and 
their relatively slow speed in comparison to commercial shipping 
traffic (i.e., the primary cause of marine mammal vessel strikes).
    With specific reference to Level B harassment that may occur as a 
result of acoustic exposure, we note that the analytical methods from 
the original 2015 analysis are retained here. However, the state of 
science with regard to our understanding of the likely potential 
effects of the use of systems like those used by SWFSC has advanced in 
the preceding five years, as have readily available approaches to 
estimating the acoustic footprints of such sources, with the result 
that we view this analysis as highly conservative. Although more recent 
literature provides documentation of marine mammal responses to the use 
of these and similar acoustic systems (e.g., Cholewiak et al., 2017; 
Quick et al., 2017; Varghese et al., 2020), the described responses do 
not generally comport with the degree of severity that should be 
associated with Level B harassment, as defined by the MMPA. We retain 
the 2015 analytical approach for consistency with existing analyses and 
for purposes of efficiency here, and consider this acceptable because 
the approach provides a conservative estimate of potential incidents of 
Level B harassment. In summary, while we authorize the amount of take 
by Level B harassment indicated in the Estimated Take section, and 
consider these potential takings at face value in our negligible impact 
analysis, it is uncertain whether use of these acoustic systems are 
likely to cause take at all, much less at the estimated levels.
    The Estimated Take section later in this document includes a 
quantitative analysis of the number of individuals that are expected to 
be taken by this activity. The Negligible Impact Analysis and 
Determinations section considers the potential effects of the specified 
activity, the Estimated Take section, and the Mitigation section, to 
draw conclusions regarding the likely impacts of these activities on 
the reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.

Estimated Take

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

Estimated Take Due to Gear Interaction

    In order to determine the number of incidental takes requested for 
authorization, SWFSC retained the approach to estimating their 
requested take numbers that was developed in support of the 2015 rule. 
That approach was based on historical incidents of gear interaction and 
on an assessment of which species of marine mammal that have not 
historically been taken might have similar risk of interaction to those 
species that have been taken. In particular, records from the year 
2008--which remains the year with the highest number of gear 
interaction incidents--were used as the basis for generating a 
precautionary, worst-case assessment of potential takes. Reporting from 
2015-19 under the current regulations demonstrates that this approach 
was indeed a precautionary one, as annual numbers of takes have 
remained well below those recorded in 2008, and only one additional 
species that had not historically been taken in SWFSC research gear in 
2015 has subsequently been taken (common dolphin; see Table 4). SWFSC 
has elected to carry forward this precautionary approach to their take 
authorization request in support of this rulemaking, and we incorporate 
it into our rulemaking, as described in further detail below.
    The approach to estimating the number of potential incidents of 
take that could occur through gear interaction first requires 
consideration of SWFSC's record of past such incidents. We then 
consider in addition other species that may have similar 
vulnerabilities to SWFSC trawl and longline gear as those species for 
which we have historical interaction records. Historical interactions 
with research gear are described in Tables 4 and 5, and we anticipate 
that all species that interacted with SWFSC fisheries research gear 
historically could potentially be taken in the future. Available 
records are for the years 2006 through present. All historical SWFSC 
interactions have taken place in the CCE. The locations of incidental 
take events from 2015-2019 are shown in Figure 6-1 of SWFSC's 
application.

                                                    Table 4--Historical Interactions With Trawl Gear
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Number
               Gear \1\                         Survey                Date               Species           Number killed  released alive       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Midwater trawl.......................  Coastal Pelagic Species        4/24/2006  Northern fur seal (CA                 1  ..............               1
                                        (CPS).                                    stock).
Midwater trawl.......................  CPS.....................       4/29/2007  Northern fur seal (CA                 1  ..............               1
                                                                                  stock).

[[Page 3850]]

 
Midwater trawl \2\...................  Juvenile Rockfish.......       5/30/2007  Northern fur seal                     1  ..............               1
                                                                                  (eastern Pacific
                                                                                  stock).
Midwater trawl.......................  CPS.....................       4/18/2008  California sea lion....               1  ..............               1
Midwater trawl.......................  CPS.....................       4/21/2008  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................       4/26/2008  Pacific white-sided                   2  ..............               2
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................       4/27/2008  California sea lion....               1  ..............               1
Midwater trawl.......................  CPS.....................       4/27/2008  Northern fur seal                     1  ..............               1
                                                                                  (eastern 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                   1  ..............               1
                                                                                  dolphin.
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                  11  ..............              11
                                                                                  dolphin.
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      ..............               3               3
                                                                                  dolphin.
Midwater trawl \2\...................  Juvenile Rockfish.......       5/25/2009  California sea lion....  ..............               1               1
Midwater trawl.......................  CPS.....................       4/18/2010  Pacific white-sided      ..............               1               1
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................       4/25/2010  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Midwater trawl \2\...................  Juvenile Rockfish.......       9/10/2010  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................        4/3/2011  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Midwater trawl.......................  Juvenile Salmon.........        9/9/2011  California sea lion....               1  ..............               1
Midwater trawl.......................  Juvenile Salmon.........       9/10/2011  Pacific white-sided                   6  ..............               6
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................       6/29/2012  Pacific white-sided      ..............               1               1
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................       8/18/2012  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................       8/24/2012  Pacific white-sided                   2  ..............               2
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................        8/1/2013  Pacific white-sided                   1               2               3
                                                                                  dolphin.
Midwater trawl.......................  Juvenile Salmon.........       9/14/2013  Pacific white-sided                   3  ..............               3
                                                                                  dolphin.
Midwater trawl \2\...................  Juvenile Rockfish.......        6/1/2014  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Surface trawl........................  Sardine-Hake Acoustic          8/26/2015  Pacific white-sided                   1  ..............               1
                                        Trawl.                                    dolphin.
Surface trawl........................  Juvenile Salmon.........       9/14/2015  California sea lion....  ..............               1               1
Midwater trawl \2\...................  Juvenile Rockfish.......       5/15/2016  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Surface trawl........................  CPS.....................       7/17/2016  Pacific white-sided                   7               1               8
                                                                                  dolphin.
Midwater trawl \2\...................  Juvenile Rockfish.......       6/14/2018  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Midwater trawl \2\...................  Juvenile Rockfish.......       6/21/2018  California sea lion....               1  ..............               1
Midwater trawl.......................  CPS.....................       7/24/2018  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Midwater trawl.......................  CPS.....................       8/27/2018  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
Surface trawl........................  CCE Survey (CCES).......       6/22/2019  Pacific white-sided                   2  ..............               2
                                                                                  dolphin.
Midwater trawl.......................  CCES....................        8/8/2019  Pacific white-sided                   2  ..............               2
                                                                                  dolphin.
Midwater trawl.......................  CCES....................        8/8/2019  Pacific white-sided                   1  ..............               1
                                                                                  dolphin.
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                  49               8              57
                                                                                  dolphin (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 5--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

[[Page 3851]]

SWFSC has no recorded interactions with any gear other than midwater 
trawl and pelagic longline gear, and we do not anticipate any future 
interactions in any other gears historically used by SWFSC, including 
the bottom trawl gear periodically employed by the SWFSC in the AMLR. 
However, SWFSC has not historically used purse seine gear, and we do 
anticipate that the planned future use of purse seine gear in the CCE 
could present some risk of marine mammal interaction.
    During trawl surveys, SWFSC has recorded interactions with northern 
fur seals (California and eastern Pacific stocks); California sea 
lions; Pacific white-sided dolphins; northern right whale dolphins; and 
common dolphins (long-beaked stock). No northern fur seal has been 
captured since 2008, and northern right whale dolphins have been 
involved in only one incident, also in 2008. Common dolphins have been 
involved in only one incident. Therefore, California sea lions and 
Pacific white-sided dolphins are the species most likely to interact 
with SWFSC trawl gear. For longline gear, only California sea lions 
have been captured.
    Take records from 2008 were used as the basis for estimation of 
potential incidental take in support of the 2015 rule, as this year was 
the worst on record and therefore was assumed to provide a worst-case 
basis for predicting potential future take. Take interactions from 2008 
remain the historical maximum. Therefore, as noted above, the 2015 
analysis is retained here as a potential worst-case scenario for marine 
mammal take in SWFSC gear over the 5 years considered in this 
rulemaking. In the 2015 analysis, the annual average over the most 
recent 5-year period that included 2008 (rounded up to the next whole 
number) was used to estimate the potential annual take level over the 
next five years. A five-year time frame provides enough data to 
adequately capture year-to-year variation in take levels, reflecting 
environmental conditions that may change over time. In order to 
incorporate records from the year 2008, we retain 2008-12 as the 5-year 
period over which we consider interaction records. Those annual 
averages are 7 Pacific white-sided dolphins, 4 California sea lions, 2 
northern right whale dolphins, and 1 northern fur seal, and the prior 
assumption was that this number could be taken in each of the 5 years 
(i.e., 35 Pacific white-sided dolphins, 20 California sea lions, 10 
northern right whale dolphins, 5 northern fur seals). These take 
numbers are retained, with the exception of the Pacific white-sided 
dolphin. Historically, the CPS survey has only surveyed in water depths 
>50 m and consequently does not sample the nearshore area, potentially 
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 one additional take per year. For the species most 
commonly taken, the maximum number of individuals taken through any one 
interaction was 11 Pacific white-sided dolphins and 9 California sea 
lions. Similarly, the annual average of California sea lions taken in 
longline gear from 2008-12 was 1. Therefore, the assumption is that 
five California sea lions may be taken in hook and line gear over the 
next five-year period.
    In order to evaluate the potential vulnerability of additional 
species to midwater trawl and pelagic longline gear as part of the take 
estimation process for the 2015 rule, we consulted NMFS' List of 
Fisheries (LOF), which classifies U.S. commercial fisheries into one of 
three categories according to the level of incidental marine mammal M/
SI that is known to occur on an annual basis over the most recent five-
year period (generally) for which data has been analyzed: Category I, 
frequent incidental M/SI; Category II, occasional incidental M/SI; and 
Category III, remote likelihood of or no known incidental M/SI.
    Information related to incidental M/SI in relevant commercial 
fisheries is not, however, the sole determinant of whether it may be 
appropriate to authorize take incidental to SWFSC survey operations. A 
number of factors (e.g., species-specific knowledge regarding animal 
behavior, overall abundance in the geographic region, density relative 
to SWFSC survey effort, feeding ecology, propensity to travel in groups 
commonly associated with other species historically taken) were taken 
into account by the SWFSC to determine whether a species may have a 
similar vulnerability to certain types of gear as historically taken 
species. In some cases, we have determined that species without 
documented M/SI may nevertheless be vulnerable to capture in SWFSC 
research gear. Similarly, we have determined that some species groups 
with documented M/SI are not likely to be vulnerable to capture in 
SWFSC gear.
    This review led to our inference that common dolphin, Risso's 
dolphin, Dall's porpoise, Steller sea lion, harbor seal, and northern 
elephant seal could have risk of capture in midwater trawl gear given 
the demonstrated risk of capture in commercial fishing gear that is 
similar to the gear used by SWFSC. In addition, as a result of presumed 
similarities to Pacific white-sided dolphin or California sea lion or 
to other species for which there are recorded interactions in similar 
commercial fishing gear, SWFSC determined that there was risk of 
capture for striped dolphin, bottlenose dolphin, and harbor porpoise 
despite a lack of relevant LOF records.
    The LOF review similarly led to our inference that Kogia spp., 
bottlenose dolphin, common dolphin, striped dolphin, Risso's dolphin, 
and 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 for bottlenose dolphin in trawl gear 
are split across stocks based on the spatial distribution of SWFSC 
trawl survey effort; 8 takes are assumed for the offshore stock and 3 
takes for the coastal stock.) Species deemed to have a similar risk 
profile as the California sea lion include the Steller sea lion and 
harbor seal. The remainder of species determined to be at risk of 
potential interaction with trawl gear are expected to have a relatively

[[Page 3852]]

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 5-year 
estimate of 5.
    For hook and line gear, no species is expected to have a similar 
risk profile as the California sea lion and, therefore, the expected 
potential take for all other cetacean species is two over the five-year 
period, with the exception of bottlenose dolphin, for which only one 
take over five years was requested. Although take due to use of deep-
set buoy gear is generally considered unlikely, SWFSC increased their 
take request for most cetacean species over the 2015 request (from 1 to 
2 over five years) due to the potential that their use of this gear in 
cetacean habitat could lead to an increased risk of interaction 
compared with only their use of typical pelagic longline gear.
    Regarding potential interactions with purse seine gear, we adopt 
the analysis that was developed in support of a similar incidental take 
rulemaking requested by NMFS' Northwest Fisheries Science Center 
(NWFSC) (83 FR 36370; July 27, 2018). Unlike SWFSC, NWFSC has 
historically used purse seine gear and similarly operates in the CCE. 
NWFSC has not had any historical interactions with purse seine gear. 
Therefore, we followed a similar approach as described above, in which 
the LOF was consulted and assumptions regarding species that may be 
vulnerable to interactions with the gear developed. Species with 
presumed risk of interaction with purse seine gear, based on LOF 
records, include common dolphins, harbor seal, and California sea lion. 
In addition, despite a lack of relevant LOF records, NWFSC deemed the 
following species as having risk of potential interaction with purse 
seine gear: Dall's porpoise, Pacific 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 requested 
authorization of one take per potentially affected stock over the five-
year period. However, based on the greater number of recorded 
interactions with purse seine gear for California sea lions and harbor 
seals, SWFSC requested 5 takes for each species over the five-year 
period.
    We have reviewed subsequent LOFs and determined that there are no 
new records that would change the assumptions regarding potential 
vulnerability to gear interaction described above. For a summation of 
the LOF records discussed above for trawl and longline gear, please see 
Table 13 (80 FR 8166) and Table 6 (81 FR 38516). The final 2020 LOF was 
published on April 16, 2020 (85 FR 21079), and more information about 
the LOF is available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-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 requested 
the authorization of incidental take in trawl gear for one unidentified 
pinniped and one unidentified small cetacean, and additionally one take 
of unidentified pinnipeds in both purse seine and longline gear, over 
the course of the five-year period of the regulations. Table 6 
summarizes the total M/SI take authorization due to gear interaction in 
the CCE.

                  Table 6--Total Estimated Take Due to Gear Interaction in the CCE, 2020-25 \1\
----------------------------------------------------------------------------------------------------------------
                                                 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 see 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.


[[Page 3853]]

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

Estimated Take Due to Acoustic Harassment

    As described previously, we believe it unlikely that SWFSC use of 
active acoustic sources is realistically likely to cause Level B 
harassment of marine mammals. However, per SWFSC request, we 
conservatively assume that, at worst, Level B harassment may result 
from exposure to noise from these sources, and we carry forward the 
analytical approach developed in support of the 2015 rule. At that 
time, in order to quantify the potential for Level B harassment to 
occur, NMFS developed an analytical framework considering 
characteristics of the active acoustic systems, their expected patterns 
of use, and characteristics of the marine mammal species that may 
interact with them. The framework incorporated a number of deliberately 
precautionary, simplifying assumptions, and the resulting exposure 
estimates, which are presumed here to equate to take by Level B 
harassment (as defined by the MMPA), may be seen as an overestimate of 
the potential for such effects to occur as a result of the operation of 
these systems.
    Regarding the potential for Level A harassment in the form of 
permanent threshold shift to occur, the very short duration sounds 
emitted by these sources reduces the likely level of accumulated energy 
an animal is exposed to. An individual would have to remain 
exceptionally close to a sound source for unrealistic lengths of time, 
suggesting the likelihood of injury occurring is exceedingly small. 
Potential Level A harassment is therefore not considered further in 
this analysis.
    The assessment paradigm for active acoustic sources used in SWFSC 
fisheries research is relatively straightforward and has a number of 
key simplifying assumptions. Sound produced by these sources is 
intermittent and, therefore, evaluated against the 160 dB rms criterion 
for Level B harassment by behavioral disturbance. Estimating the number 
of exposures at the specified received level requires several 
determinations:
    (1) A detailed characterization of the acoustic characteristics of 
the effective sound source or sources in operation;
    (2) The operational areas exposed to levels at or above those 
associated with Level B harassment when these sources are in operation;
    (3) A method for quantifying the resulting sound fields around 
these sources; and
    (4) An estimate of the average density for marine mammal species in 
each area of operation.
    We provide a summary of the analytical approach here, but invite 
the reader interested in additional detail to review the detailed 
description provided in support of the 2015 rule (80 FR 8166) as well 
as the detailed description provided in section 6.4.2 of SWFSC's 
application.
    Quantifying the spatial and temporal dimension of the sound 
exposure footprint (or ``swath width'') of the active acoustic devices 
in operation on moving vessels and their relationship to the average 
density of marine mammals enables a quantitative estimate of the number 
of events in which sound levels exceed the relevant threshold. The 
number of potentially harassing exposures is ultimately estimated as 
the product of the volume of water ensonified at 160 dB rms or higher 
(to a maximum depth of 500 m) and the volumetric density of animals 
determined from simple assumptions about their vertical stratification 
in the water column. Specifically, reasonable assumptions based on what 
is known about diving behavior across different marine mammal species 
were made to segregate those that predominately remain in the upper 200 
m of the water column versus those that regularly dive deeper during 
foraging and transit. Because depths range dramatically along the 
margin of the continental slope that define the outer edge of the 
survey areas, but deeper surveyed depths rarely range over 500 m in 
practice, the depth range for determining volumes was set at 500 m for 
deep diving species.
    An initial characterization of the general source parameters for 
the primary active acoustic sources operated by the SWFSC was 
conducted, enabling a full assessment of all sound sources used by the 
SWFSC (see Table 2 of the notice of proposed rulemaking). This auditing 
of the active acoustic sources also enabled a determination of the 
predominant sources that, when operated, would have sound footprints 
exceeding those from any other simultaneously used sources. These 
sources were effectively those used directly in acoustic propagation 
modeling to estimate the zones within which the 160 dB rms received 
level would occur.
    Many of these sources can be operated in different modes and with 
different output parameters. In modeling their potential impact areas, 
those features among those given in Table 2 of the notice of proposed 
rulemaking (e.g., lowest operating frequency) that would lead to the 
most precautionary estimate of maximum received level ranges (i.e., 
largest ensonified area) were used. The effective beam patterns took 
into account the normal modes in which these sources are typically 
operated. While these signals are brief and intermittent, a 
conservative assumption was taken in ignoring the temporal pattern of 
transmitted pulses in calculating potential Level B harassment events. 
Operating characteristics of each of the predominant sound sources were 
used in the calculation of effective 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. 
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

[[Page 3854]]

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 are summarized in Table 9 below.

Estimated Take Due to Physical Disturbance

    Estimated take due to physical disturbance could potentially happen 
in the AMLR only as a result of the unintentional approach of SWFSC 
vessels to pinnipeds hauled out on ice, and would result in no greater 
than Level B harassment. During Antarctic ecosystem surveys conducted 
in the austral winter (i.e., June 1 through August 31), it is expected 
that shipboard activities may result in behavioral disturbance of some 
pinnipeds. It is likely that some pinnipeds on ice will move or flush 
from the haul-out into the water in response to the presence or sound 
of SWFSC survey vessels. Behavioral responses may be considered 
according to the scale shown in Table 7 and based on the method 
developed by Mortenson (1996). We consider responses corresponding to 
Levels 2-3 to constitute Level B harassment.

                                    Table 7--Pinniped Response to Disturbance
----------------------------------------------------------------------------------------------------------------
             Level                     Type of response                            Definition
----------------------------------------------------------------------------------------------------------------
1.............................  Alert........................  Seal head orientation or brief movement in
                                                                response to disturbance, which may include
                                                                turning head towards the disturbance, craning
                                                                head and neck while holding the body rigid in a
                                                                u-shaped position, changing from a lying to a
                                                                sitting position, or brief movement of less than
                                                                twice the animal's body length.
2.............................  Movement.....................  Movements in response to the source of
                                                                disturbance, ranging from short withdrawals at
                                                                least twice the animal's body length to longer
                                                                retreats over the beach, or if already moving a
                                                                change of direction of greater than 90 degrees.
3.............................  Flush........................  All retreats (flushes) to the water.
----------------------------------------------------------------------------------------------------------------

    The SWFSC has estimated potential incidents of Level B harassment 
due to physical disturbance (Table 8) using the vessel distance 
traveled (20,846 km) during a typical AMLR survey, an effective strip 
width of 200 m (animals are assumed to react if they are less than 100 
m from the vessel; see below), and the estimated population density for 
each species (see Table 6-2 of SWFSC's application). Although there is 
likely to be variation between individuals and species in reactions to 
a passing research vessel--that is, some animals assumed to react in 
this calculation will not react, and others assumed not to react 
because they are outside the effective strip width may in fact react--
we believe that this approach is a reasonable effort towards accounting 
for this potential source of disturbance and have no information to 
indicate that the approach is biased either negatively or positively. 
SWFSC used an effective strip width of 200 m (i.e., 100 m on either 
side of a passing vessel) to be consistent with the regional marine 
mammal viewing guidelines that NMFS has established for Alaska, which 
restrict approaches to marine mammals to a distance of 100 m or greater 
in order to reduce the potential to cause inadvertent harm. Alaska is 
believed to have the most similar environment to the Antarctic of all 
regions for which NMFS has established viewing guidelines. Each 
estimate is the product of the species-specific density, annual

[[Page 3855]]

line-kilometers, and the effective strip-width.

 Table 8--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\ 1               5
Weddell seal............................             225           1,125
Crabeater seal..........................           2,704          13,520
Leopard seal............................              68             340
------------------------------------------------------------------------
\1\ Based on the recommendation of the Marine Mammal Commission (see
  Comments and Responses), this has been increased to 5.

Mitigation

    Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses (``least practicable adverse impact''). NMFS does not 
have a regulatory definition for ``least practicable adverse impact.'' 
However, NMFS' implementing regulations require applicants for 
incidental take authorizations to include information about the 
availability and feasibility (economic and technological) of equipment, 
methods, and manner of conducting such activity or other means of 
effecting the least practicable adverse impact upon the affected 
species or stocks and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, we carefully consider two primary factors:
    (1) The manner in which, and the degree to which, implementation of 
the measure(s) is expected to reduce impacts to marine mammal species 
or stocks, their habitat, and their availability for subsistence uses. 
This analysis will consider such things as the nature of the potential 
adverse impact (such as likelihood, scope, and range), the likelihood 
that the measure will be effective if implemented, and the likelihood 
of successful implementation.
    (2) The practicability of the measure for applicant implementation. 
Practicability of implementation may consider such things as cost, 
impact on operations, personnel safety, and practicality of 
implementation.
    The following suite of mitigation measures and procedures, i.e., 
measures taken to monitor, avoid, or minimize the encounter and 
potential take of marine mammals, will be employed by the SWFSC during 
research cruises and activities. For a summary of measures proposed by 
SWFSC, please see Table 11-1 of the application. These procedures are 
the same whether the survey is conducted by SWFSC or is a SWFSC-
supported survey, which may be conducted onboard a variety of vessels, 
e.g., on board a NOAA vessel or charter vessel. The procedures 
described are based on protocols used during previous research surveys 
and/or best practices developed for commercial fisheries using similar 
gear. The SWFSC conducts a large variety of research operations, but 
only activities using trawl, hook and line, and purse seine gears are 
expected to present a reasonable likelihood of resulting in incidental 
take of marine mammals. SWFSC's past survey operations have resulted in 
marine mammal interactions. These protocols are designed to minimize to 
the extent practicable the interactions that do happen while providing 
credible, documented, and safe encounters with observed or captured 
animals. Mitigation procedures will be focused on those situations 
where mammals, in the best professional judgement of the vessel 
operator and Chief Scientist (CS), pose a risk of incidental take. In 
many instances, the SWFSC will use streamlined protocols and training 
for protected species developed in support of the 2015 rule and refined 
during implementation of the rule.
    The SWFSC has invested significant time and effort in identifying 
technologies, practices, and equipment to minimize the impact of the 
proposed activities on marine mammal species and stocks and their 
habitat. These efforts have resulted in the consideration of many 
potential mitigation measures, including those the SWFSC has determined 
to be feasible and has implemented for years as a standard part of 
sampling protocols. These measures include the move-on rule mitigation 
protocol (also referred to in the preamble as the move-on rule), 
protected species visual watches, and use of acoustic pingers and a 
marine mammal exclusion device (MMED) on surface trawls using the 
Nordic 264 trawl net.
    Effective monitoring is a key step in implementing mitigation 
measures and is achieved through regular marine mammal watches. Marine 
mammal watches are a standard part of conducting SWFSC fisheries 
research activities, particularly those activities that use gears that 
are known to or potentially interact with marine mammals. Marine mammal 
watches and monitoring occur during daylight hours prior to deployment 
of gear (e.g., trawls, purse seine, and longline gear), and they 
continue through active fishing and during retrieval of gear. If marine 
mammals are sighted in the area and are considered to be at risk of 
interaction with the research gear, then the sampling station is either 
moved or canceled or the activity is suspended until the marine mammals 
are no longer in the area. On smaller vessels, the CS and the vessel 
operator are typically those looking for marine mammals and other 
protected species. When marine mammal researchers are on board 
(distinct from marine mammal observers dedicated to monitoring for 
potential gear interactions), they will record the estimated species 
and numbers of animals present and their behavior. If marine mammal 
researchers are not on board or available, then the CS in cooperation 
with the vessel operator will monitor for marine mammals and provide 
training as practical to bridge crew and other crew to observe and 
record such information. Because marine mammals are frequently observed 
in CCE waters, marine mammal observations may be limited to

[[Page 3856]]

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 regulations will be issued, we 
require that the SWFSC take all necessary measures to coordinate and 
communicate in advance of each specific survey with OMAO, or other 
relevant parties, to ensure that all mitigation measures and monitoring 
requirements described herein, as well as the specific manner of 
implementation and relevant 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 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

[[Page 3857]]

prior to deploying trawl gear. In these cases, the visual watch will 
continue until trawl gear is ready to be deployed.
    Lookouts immediately alert the OOD and CS as to their best estimate 
of the species and number of animals observed and any observed animal's 
distance, bearing, and direction of travel relative to the ship's 
position. If any marine mammals are sighted around the vessel before 
setting gear, the vessel may be moved away from the animals to a 
different section of the sampling area if the animals appear to be at 
risk of interaction with the gear. This is what is referred to as the 
``move-on'' rule.
    If marine mammals are sighted within 1 nmi of the planned set 
location in the 15 minutes before setting the gear, the vessel will 
transit to a different section of the sampling area to maintain a 
minimum set distance of 1 nmi. An exception to this protocol is for 
baleen whales; baleen whales are commonly observed within the 1 nmi 
distance from SWFSC trawl sampling locations but have never been 
observed to be attracted to SWFSC research activity and have never 
interacted with SWFSC research gear. Decision regarding the potential 
need to move-on in response to baleen whale presence will be made on 
the basis of professional judgment based on the specific circumstances. 
If after moving on, protected species remain within the 1 nmi exclusion 
zone, the CS or watch leader may decide to move again or to skip the 
station. However, SWFSC acknowledges that the effectiveness of visual 
monitoring may be limited depending on weather and lighting conditions, 
and it may not always be possible to conduct visual observations out to 
1 nmi. The CS or watch leader will determine the best strategy to avoid 
potential takes of marine mammals based on the species encountered, 
their numbers and behavior, position and vector relative to the vessel, 
and other factors. For instance, a marine mammal transiting through the 
area off in the distance might only require a short move from the 
designated station while a pod of dolphins gathered around the vessel 
may require a longer move from the station or possibly cancellation if 
they follow the vessel. In any case, no gear will be deployed if marine 
mammals other than baleen whales have been sighted within 1 nmi of the 
planned set location during the 15-minute watch period.
    In many cases, trawl operations will be the first activity 
undertaken upon arrival at a new station, in order to reduce the 
opportunity to attract marine mammals to the vessel. However, in some 
cases it will be necessary to conduct plankton tows prior to deploying 
trawl gear in order to avoid trawling through extremely high densities 
of jellies and similar taxa that are numerous enough to severely damage 
trawl gear.
    Once the trawl net is in the water, the OOD, CS, and/or crew 
standing watch will continue to monitor the waters around the vessel 
and maintain a lookout for marine mammal presence as far away as 
environmental conditions allow. If marine mammals are sighted before 
the gear is fully retrieved, the most appropriate response to avoid 
incidental take will be determined by the professional judgment of the 
CS, watch leader, OOD and other experienced crew as necessary. This 
judgment will be based on their past experience operating gears around 
marine mammals and SWFSC training sessions that facilitate 
dissemination of expertise operating in these situations (e.g., factors 
that contribute to marine mammal gear interactions and those that aid 
in successfully avoiding these events). These judgments take into 
consideration the species, numbers, and behavior of the animals, the 
status of the trawl net operation (net opening, depth, and distance 
from the stern), the time it would take to retrieve the net, and safety 
considerations for changing speed or course.
    The appropriate course of action to minimize the risk of incidental 
take is determined by the professional judgment of the OOD, vessel 
operator, and the CS based on all situation variables, even if the 
choices compromise the value of the data collected at the station. We 
recognize that it is not possible to dictate in advance the exact 
course of action that the OOD or CS should take in any given event 
involving the presence of marine mammals in proximity to an ongoing 
trawl tow, given the sheer number of potential variables, combinations 
of variables that may determine the appropriate course of action, and 
the need to prioritize human safety in the operation of fishing gear at 
sea. Nevertheless, we require a full accounting of factors that shape 
both successful and unsuccessful decisions, and these details will be 
fed back into SWFSC training efforts and ultimately help to refine the 
best professional judgment that determines the course of action taken 
in any given scenario (see further discussion in Monitoring and 
Reporting).
    If trawling operations have been suspended because of the presence 
of marine mammals, the vessel will resume trawl operations (when 
practicable) only when the mammals have not been sighted within 1 nmi 
of the planned set location. This decision is at the discretion of the 
officer on watch and is dependent on the situation.
    Care will be taken when emptying the trawl to avoid damage to any 
marine mammals that may be caught in the gear but are not visible upon 
retrieval. The gear will be emptied as quickly as possible after 
retrieval in order to determine whether or not marine mammals, or any 
other protected species, are present.
    Standard survey protocols that are expected to lessen the 
likelihood of marine mammal interactions include standardized tow 
durations and distances. Standard tow durations of not more than 45 
minutes at the target depth have been implemented, excluding deployment 
and retrieval time (which may require an additional 30 minutes 
depending on depth), to reduce the likelihood of attracting and 
incidentally taking marine mammals and other protected species. These 
short tow durations decrease the opportunity for curious marine mammals 
to find the vessel and investigate. Trawl tow distances are less than 3 
nmi, which should reduce the likelihood of attracting and incidentally 
taking marine mammals. Typical tow distances are 1-2 nmi, depending on 
the survey and trawl speed. In addition, the vessel's crew will clean 
trawl nets prior to deployment to remove prey items that might attract 
marine mammals. Catch volumes are typically small, with every attempt 
made to collect all organisms caught in the trawl.
    Marine Mammal Excluder Devices--The NETS Nordic 264 trawl gear will 
be fitted with MMEDs to allow marine mammals caught during trawling 
operations an opportunity to escape. These devices enable target 
species to pass through a grid or mesh barrier and into the codend 
while preventing the passage of marine mammals, which are ejected out 
through an escape opening or swim back out of the mouth of the net. 
Potential for interactions with protected species, such as marine 
mammals, is often greatest during the deployment and retrieval of the 
trawl, when the net is at or near the surface of the water. During 
retrieval of the net, protected species may become entangled in the net 
while attempting to feed from the codend as it floats near the surface 
of the water. Considerable effort has been given to developing MMEDs 
that allow marine mammals to escape from the net while allowing 
retention of the target species (e.g., Dotson et al., 2010). MMEDs 
generally consist of a large aluminum grate

[[Page 3858]]

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

Purse Seine Survey Visual Monitoring and Operational Protocols

    Visual monitoring and operational protocols for purse seine surveys 
are similar to those described previously for trawl surveys, with a 
focus on visual

[[Page 3859]]

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

Monitoring and Reporting

    In order to issue an LOA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of the authorized taking. NMFS's MMPA 
implementing regulations further describe the information that an 
applicant should provide when requesting an authorization (50 CFR 
216.104(a)(13)), including the means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and the level of taking or impacts on populations of marine 
mammals.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of significant interactions with marine mammal 
species in action area (e.g., animals that came close to the vessel, 
contacted the gear, or are otherwise rare or displaying unusual 
behavior);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or important physical components of marine 
mammal habitat); and
     Mitigation and monitoring effectiveness.
    SWFSC plans to continue its systematic training, operations, data 
collection, animal handling and sampling protocols, etc., as refined 
through implementation of the 2015 rule, in order to improve its 
ability to understand how mitigation measures influence interaction 
rates and ensure its research operations are conducted in an informed 
manner and consistent with lessons learned from those with experience 
operating these gears in close proximity to marine mammals. It is in 
this spirit that we plan to continue the monitoring requirements 
described below.

Visual Monitoring

    Marine mammal watches are a standard part of conducting fisheries 
research activities, and are implemented as described previously in 
Mitigation. Dedicated marine mammal visual monitoring occurs as 
described (1) for some period prior to deployment of most research 
gear; (2) throughout deployment and active fishing of all research 
gears; (3) for some period prior to retrieval of longline gear; and (4) 
throughout retrieval of all research gear. This visual monitoring is 
performed by trained SWFSC personnel or other trained crew during the 
monitoring period. Observers record the species and estimated number of 
animals present and their behaviors, which may be valuable information 
towards an understanding of whether certain species may be attracted to 
vessels or certain survey gears. Separately, marine mammal watches are 
conducted by watch-standers (those navigating the vessel and other 
crew; these will typically not be SWFSC personnel) at all times when 
the vessel is being operated. The primary focus for this type of watch 
is to avoid striking marine mammals and to generally avoid navigational 
hazards. These watch-standers typically have other duties associated 
with navigation and other vessel operations and are not required to 
record or report to the scientific party data on marine mammal 
sightings, except when gear is being deployed or retrieved.
    SWFSC will also monitor disturbance of hauled-out pinnipeds 
resulting from the presence of researchers in the Antarctic, paying 
particular attention to the distance at which different species of 
pinniped are disturbed. Disturbance will be recorded according to the 
three-point scale, representing increasing seal response to 
disturbance, shown in Table 7.

Training

    SWFSC anticipates that additional information on practices to avoid 
marine mammal interactions can be gleaned from training sessions and 
the continuation of systematic data collection standards. The SWFSC 
will conduct annual trainings for all chief scientists and other 
personnel who may be responsible for conducting marine mammal visual 
observations or handling incidentally captured marine mammals to 
explain mitigation measures and monitoring and reporting requirements, 
mitigation and monitoring protocols, marine mammal identification, 
recording of count and disturbance observations, completion of 
datasheets, and use of equipment. Some

[[Page 3860]]

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

Handling Procedures and Data Collection

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

Reporting

    As is normally the case, SWFSC will coordinate with the relevant 
stranding coordinators for any unusual marine mammal behavior and any 
stranding, beached live/dead, or floating marine mammals that are 
encountered during field research activities. In addition, Chief 
Scientists (or cruise leader, CS) will provide reports to SWFSC 
leadership and to the Office of Protected Resources (OPR). As a result, 
when marine mammals interact with survey gear, whether killed or 
released alive, a report provided by the CS will fully describe any 
observations of the animals, the context (vessel and conditions), 
decisions made and rationale for decisions made in vessel and gear 
handling. The circumstances of these events are critical in enabling 
SWFSC and OPR to better evaluate the conditions under which takes are 
most likely occur. We believe in the long term this will allow the 
avoidance of these types of events in the future.
    The SWFSC will submit annual summary reports to OPR including: (1) 
Annual line-kilometers surveyed during which the predominant acoustic 
systems were used (see ``Estimated Take by Acoustic Harassment'' for 
further discussion), specific to each region; (2) summary information 
regarding use of all hook and line, purse seine, and trawl gear, 
including number of sets, tows, etc., specific to each research area 
and gear; (3) accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why; (4) information 
related to occasions when the move-on rule was waived based on 
occurrence of groups of California sea lions; (5) summary information 
related to any on-ice disturbance of pinnipeds, including raw sightings 
data and the event-specific total counts of animals present, counts of 
reactions according to a three-point scale of response severity and 
numbers of takes (differentiated by species and age class), the 
distance at which a pinniped is disturbed and the closest point of 
approach for each disturbance event; and (6) a written evaluation of 
the effectiveness of SWFSC mitigation strategies in reducing the number 
of marine mammal interactions with survey gear, including best 
professional judgment and suggestions for changes to the mitigation 
strategies, if any. The period of reporting will be annually, and the 
report must be submitted not less than ninety days following the end of 
a given year. Submission of this information is in service of an 
adaptive management framework allowing NMFS to make appropriate 
modifications to mitigation and/or monitoring strategies, as necessary, 
during the five-year period of validity for these regulations.
    NMFS has established a formal incidental take reporting system, the 
Protected Species Incidental Take (PSIT) database, requiring that 
incidental takes of protected species be reported within 48 hours of 
the occurrence. The PSIT generates automated messages to NMFS 
leadership and other relevant staff, alerting them to the event and to 
the fact that updated information describing the circumstances of the 
event has been inputted to the database. The PSIT and CS reports not 
only provide valuable real-time reporting and information dissemination 
tools but also serve as an archive of information that may be mined in 
the future to study why takes occur by species, gear, region, etc.
    SWFSC will also collect and report all necessary data, to the 
extent practicable

[[Page 3861]]

given the primacy of human safety and the well-being of captured or 
entangled marine mammals, to facilitate serious injury (SI) 
determinations for marine mammals that are released alive. SWFSC will 
require that the CS complete data forms and address supplemental 
questions, both of which have been developed to aid in SI 
determinations. SWFSC understands the critical need to provide as much 
relevant information as possible about marine mammal interactions to 
inform decisions regarding SI determinations. In addition, the SWFSC 
will perform all necessary reporting to ensure that any incidental M/SI 
is incorporated as appropriate into relevant SARs.

Negligible Impact Analysis and Determinations

    Introduction--NMFS has defined negligible impact as an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival (50 CFR 216.103). A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., 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 
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 worst 
potential outcome (mortality) is analyzed for the purposes of the 
negligible impact determination. We discuss here the connection, and 
differences, between the legal mechanisms for authorizing incidental 
take under section 101(a)(5) for activities such as SWFSC's research 
activities, and for authorizing incidental take from commercial 
fisheries. In 1988, Congress amended the MMPA's provisions for 
addressing incidental take of marine mammals in commercial fishing 
operations. Congress directed NMFS to develop and recommend a new long-
term regime to govern such incidental taking (see MMC, 1994). The need 
to develop a system suited to the unique circumstances of commercial 
fishing operations led NMFS to suggest a new conceptual means and 
associated regulatory framework. That concept, PBR, and a system for 
developing plans containing regulatory and voluntary measures to reduce 
incidental take for fisheries that exceed PBR were incorporated as 
sections 117 and 118 in the 1994 amendments to the MMPA.
    PBR is defined in section 3 of the MMPA (16 U.S.C. 1362(20)) as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (OSP) and, 
although not controlling, can be one measure considered among other 
factors when evaluating the effects of M/SI on a marine mammal species 
or stock during the section 101(a)(5)(A) process. OSP is defined in 
section 3 of the MMPA (16 U.S.C. 1362(9)) as the number of animals 
which will result in the maximum productivity of the population or the 
species, keeping in mind the carrying capacity of the habitat and the 
health of the ecosystem of which they form a constituent element. 
Through section 2, an overarching goal of the statute is to ensure that 
each species or stock of marine mammal is maintained at or returned to 
its OSP.
    PBR values are calculated by NMFS as the level of annual removal 
from a stock that will allow that stock to equilibrate within OSP at 
least 95 percent of the time, and is the product of factors relating to 
the minimum population estimate of the stock (Nmin), the 
productivity rate of the stock at a small population size, and a 
recovery factor. Determination of appropriate values for these three 
elements incorporates significant precaution, such that application of 
the parameter to the management of marine mammal stocks may be 
reasonably certain to achieve the goals of the MMPA. For example, 
calculation of Nmin incorporates the precision and 
variability associated with abundance information, while also providing 
reasonable assurance that the stock size is equal to or greater than 
the estimate (Barlow et al., 1995). In general, the three factors are 
developed on a stock-specific basis in consideration of one another in 
order to produce conservative PBR values that appropriately account for 
both imprecision that may be estimated, as well as potential bias 
stemming from lack of knowledge (Wade, 1998).
    Congress called for PBR to be applied within the management 
framework for commercial fishing incidental take under section 118 of 
the MMPA. As a result, PBR cannot be applied appropriately outside of 
the section 118 regulatory framework without consideration of how it 
applies within the section 118 framework, as well as how the other 
statutory management frameworks in the MMPA differ from the framework 
in section 118. PBR was not designed and is not used as an absolute 
threshold limiting commercial fisheries. Rather, it serves as a means 
to evaluate the relative impacts of those activities on marine mammal 
stocks. Even where commercial fishing is causing M/SI at levels that 
exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the 
commercial fishing context under section 118, NMFS may develop a take 
reduction plan, usually with the assistance of a take reduction team. 
The take reduction plan will include measures to reduce and/or minimize 
the taking of marine mammals by commercial fisheries to a level below 
the stock's PBR. That is, where the total annual human-caused M/SI 
exceeds PBR, NMFS is not required to halt fishing activities 
contributing to total M/SI but rather utilizes the take reduction 
process to further mitigate the effects of fishery activities via 
additional bycatch reduction measures. In other words, under section 
118 of the MMPA, PBR does not serve as a strict cap on the operation of 
commercial fisheries that may incidentally take marine mammals.
    Similarly, to the extent PBR may be relevant when considering the 
impacts of incidental take from activities other than commercial 
fisheries, using it as the sole reason to deny (or issue) incidental 
take authorization for those activities would be inconsistent with 
Congress's intent under section 101(a)(5), NMFS' long-standing 
regulatory definition of ``negligible impact,'' and the use of PBR 
under section 118. The standard for authorizing incidental take for 
activities other than commercial fisheries under section 101(a)(5) 
continues to be, among

[[Page 3862]]

other things that are not related to PBR, whether the total taking will 
have a negligible impact on the species or stock. Nowhere does section 
101(a)(5)(A) reference use of PBR to make the negligible impact finding 
or authorize incidental take through multi-year regulations, nor does 
its companion provision at 101(a)(5)(D) for authorizing non-lethal 
incidental take under the same negligible-impact standard. NMFS' MMPA 
implementing regulations state that take has a negligible impact when 
it does not adversely affect the species or stock through effects on 
annual rates of recruitment or survival--likewise without reference to 
PBR. When Congress amended the MMPA in 1994 to add section 118 for 
commercial fishing, it did not alter the standards for authorizing non-
commercial fishing incidental take under section 101(a)(5), implicitly 
acknowledging that the negligible impact standard under section 
101(a)(5) is separate from the PBR metric under section 118. In fact, 
in 1994 Congress also amended section 101(a)(5)(E) (a separate 
provision governing commercial fishing incidental take for species 
listed under the Endangered Species Act) to add compliance with the new 
section 118 but retained the standard of the negligible impact finding 
under section 101(a)(5)(A) (and section 101(a)(5)(D)), showing that 
Congress understood that the determination of negligible impact and 
application of PBR may share certain features but are, in fact, 
different.
    Since the introduction of PBR in 1994, NMFS had used the concept 
almost entirely within the context of implementing sections 117 and 118 
and other commercial fisheries management-related provisions of the 
MMPA. Prior to the Court's ruling in Conservation Council for Hawaii v. 
National Marine Fisheries Service, 97 F. Supp. 3d 1210 (D. Haw. 2015) 
and consideration of PBR in a series of section 101(a)(5) rulemakings, 
there were a few examples where PBR had informed agency deliberations 
under other MMPA sections and programs, such as playing a role in the 
issuance of a few scientific research permits and subsistence takings. 
But as the Court found when reviewing examples of past PBR 
consideration in Georgia Aquarium v. Pritzker, 135 F. Supp. 3d 1280 
(N.D. Ga. 2015), where NMFS had considered PBR outside the commercial 
fisheries context, ``it has treated PBR as only one `quantitative tool' 
and [has not used it] as the sole basis for its impact analyses.'' 
Further, the agency's thoughts regarding the appropriate role of PBR in 
relation to MMPA programs outside the commercial fishing context have 
evolved since the agency's early application of PBR to section 
101(a)(5) decisions. Specifically, NMFS' denial of a request for 
incidental take authorization for the U.S. Coast Guard in 1996 
seemingly was based on the potential for lethal take in relation to PBR 
and did not appear to consider other factors that might also have 
informed the potential for ship strike in relation to negligible impact 
(61 FR 54157; October 17, 1996).
    The MMPA requires that PBR be estimated in SARs and that it be used 
in applications related to the management of take incidental to 
commercial fisheries (i.e., the take reduction planning process 
described in section 118 of the MMPA and the determination of whether a 
stock is ``strategic'' as defined in section 3), but nothing in the 
statute requires the application of PBR outside the management of 
commercial fisheries interactions with marine mammals. Nonetheless, 
NMFS recognizes that as a quantitative metric, PBR may be useful as a 
consideration when evaluating the impacts of other human-caused 
activities on marine mammal stocks. Outside the commercial fishing 
context, and in consideration of all known human-caused mortality, PBR 
can help inform the potential effects of M/SI requested to be 
authorized under 101(a)(5)(A). As noted by NMFS and the U.S. Fish and 
Wildlife Service in our implementation regulations for the 1986 
amendments to the MMPA (54 FR 40341, September 29, 1989), the Services 
consider many factors, when available, in making a negligible impact 
determination, including, but not limited to, the status of the species 
or stock relative to OSP (if known); whether the recruitment rate for 
the species or stock is increasing, decreasing, stable, or unknown; the 
size and distribution of the population; and existing impacts and 
environmental conditions. In this multi-factor analysis, PBR can be a 
useful indicator for when, and to what extent, the agency should take 
an especially close look at the circumstances associated with the 
potential mortality, along with any other factors that could influence 
annual rates of recruitment or survival.
    When considering PBR during evaluation of effects of M/SI under 
section 101(a)(5)(A), we first calculate a metric for each species or 
stock that incorporates information regarding ongoing anthropogenic M/
SI into the PBR value (i.e., PBR minus the total annual anthropogenic 
mortality/serious injury estimate in the SAR), which is called 
``residual PBR'' (Wood et al., 2012). We first focus our analysis on 
residual PBR because it incorporates anthropogenic mortality occurring 
from other sources. If the ongoing human-caused mortality from other 
sources does not exceed PBR, then residual PBR is a positive number, 
and we consider how the anticipated or potential incidental M/SI from 
the activities being evaluated compares to residual PBR using the 
framework in the following paragraph. If the ongoing anthropogenic 
mortality from other sources already exceeds PBR, then residual PBR is 
a negative number and we consider the M/SI from the activities being 
evaluated as described further below.
    When ongoing total anthropogenic mortality from the applicant's 
specified activities does not exceed PBR and residual PBR is a positive 
number, as a simplifying analytical tool we first consider whether the 
specified activities could cause incidental M/SI that is less than 10 
percent of residual PBR (the ``insignificance threshold,'' see below). 
If so, we consider M/SI from the specified activities to represent an 
insignificant incremental increase in ongoing anthropogenic M/SI for 
the marine mammal stock in question that alone (i.e., in the absence of 
any other take) will not adversely affect annual rates of recruitment 
and survival. As such, this amount of M/SI would not be expected to 
affect rates of recruitment or survival in a manner resulting in more 
than a negligible impact on the affected stock unless there are other 
factors that could affect reproduction or survival, such as Level A 
and/or Level B harassment, or other considerations such as information 
that illustrates uncertainty involved in the calculation of PBR for 
some stocks. In a few prior incidental take rulemakings, this threshold 
was identified as the ``significance threshold,'' but it is more 
accurately labeled an insignificance threshold, and so we use that 
terminology here. Assuming that any additional incidental take by Level 
A or Level B harassment from the activities in question would not 
combine with the effects of the authorized M/SI to exceed the 
negligible impact level, the anticipated M/SI caused by the activities 
being evaluated would have a negligible impact on the species or stock. 
However, M/SI above the 10 percent insignificance threshold does not 
indicate that the M/SI associated with the specified activities is 
approaching a level that would necessarily exceed negligible impact. 
Rather, the 10 percent insignificance threshold is meant only to 
identify

[[Page 3863]]

instances where additional analysis of the anticipated M/SI is not 
required because the negligible impact standard clearly will not be 
exceeded on that basis alone.
    Where the anticipated M/SI is near, at, or above residual PBR, 
consideration of other factors (positive or negative), including those 
outlined above, as well as mitigation is especially important to 
assessing whether the M/SI will have a negligible impact on the species 
or stock. PBR is a conservative metric and not sufficiently precise to 
serve as an absolute predictor of population effects upon which 
mortality caps would appropriately be based. For example, in some cases 
stock abundance (which is one of three key inputs into the PBR 
calculation) is underestimated because marine mammal survey data within 
the U.S. EEZ are used to calculate the abundance even when the stock 
range extends well beyond the U.S. EEZ. An underestimate of abundance 
could result in an underestimate of PBR. Alternatively, we sometimes 
may not have complete M/SI data beyond the U.S. EEZ to compare to PBR, 
which could result in an overestimate of residual PBR. The accuracy and 
certainty around the data that feed any PBR calculation, such as the 
abundance estimates, must be carefully considered to evaluate whether 
the calculated PBR accurately reflects the circumstances of the 
particular stock. M/SI that exceeds PBR may still potentially be found 
to be negligible in light of other factors that offset concern, 
especially when robust mitigation and adaptive management provisions 
are included.
    PBR was designed as a tool for evaluating mortality and is defined 
as the number of animals that can be removed while allowing that stock 
to reach or maintain its OSP. OSP is defined as a population that falls 
within a range from the population level that is the largest 
supportable within the ecosystem to the population level that results 
in maximum net productivity, and thus is an aspirational management 
goal of the overall statute with no specific timeframe by which it 
should be met. PBR is designed to ensure minimal deviation from this 
overarching goal, with the formula for PBR typically ensuring that 
growth towards OSP is not reduced by more than 10 percent (or 
equilibrates to OSP 95 percent of the time). As PBR is applied by NMFS, 
it provides that growth toward OSP is not reduced by more than 10 
percent, which certainly allows a stock to reach or maintain its OSP in 
a conservative and precautionary manner--and we can therefore clearly 
conclude that if PBR were not exceeded, there would not be adverse 
effects on the affected species or stocks. Nonetheless, it is equally 
clear that in some cases the time to reach this aspirational OSP level 
could be slowed by more than 10 percent (i.e., total human-caused 
mortality in excess of PBR could be allowed) without adversely 
affecting a species or stock through effects on its rates of 
recruitment or survival. Thus even in situations where the inputs to 
calculate PBR are thought to accurately represent factors such as the 
species' or stock's abundance or productivity rate, it is still 
possible for incidental take to have a negligible impact on the species 
or stock even where M/SI exceeds residual PBR or PBR.
    PBR is helpful in informing the analysis of the effects of 
mortality on a species or stock because it is important from a 
biological perspective to be able to consider how the total mortality 
in a given year may affect the population. However, section 
101(a)(5)(A) of the MMPA indicates that NMFS shall authorize the 
requested incidental take from a specified activity if we find that the 
total of such taking [i.e., from the specified activity] will have a 
negligible impact on such species or stock. In other words, the task 
under the statute is to evaluate the applicant's anticipated take in 
relation to their take's impact on the species or stock, not other 
entities' impacts on the species or stock. Neither the MMPA nor NMFS' 
implementing regulations call for consideration of other unrelated 
activities and their impacts on the species or stock. In fact, in 
response to public comments on the implementing regulations NMFS 
explained that such effects are not considered in making negligible 
impact findings under section 101(a)(5), although the extent to which a 
species or stock is being impacted by other anthropogenic activities is 
not ignored. Such effects are reflected in the baseline of existing 
impacts as reflected in the species' or stock's abundance, 
distribution, reproductive rate, and other biological indicators.
    Our evaluation of the M/SI for each of the species and stocks for 
which M/SI could occur follows. In addition, all mortality authorized 
for some of the same species or stocks over the next several years 
pursuant to our final rulemakings for the NMFS Alaska Fisheries Science 
Center (AFSC) and the NMFS Northwest Fisheries Science Center (NWFSC) 
has been incorporated into the residual PBR. By considering the maximum 
potential incidental M/SI in relation to PBR and ongoing sources of 
anthropogenic mortality, we begin our evaluation of whether the 
potential incremental addition of M/SI through SWFSC research 
activities may affect the species' or stocks' annual rates of 
recruitment or survival. We also consider the interaction of those 
mortalities with incidental taking of that species or stock by 
harassment pursuant to the specified activity.
    We first consider maximum potential incidental M/SI for each stock 
(Table 6) in consideration of NMFS's threshold for identifying 
insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July 
20, 2004)). By considering the maximum potential incidental M/SI in 
relation to PBR and ongoing sources of anthropogenic mortality, we 
begin our evaluation of whether the potential incremental addition of 
M/SI through SWFSC research activities may affect the species' or 
stock's annual rates of recruitment or survival. We also consider the 
interaction of those mortalities with incidental taking of that species 
or stock by harassment pursuant to the specified activity.

Summary of Estimated Incidental Take

    Here we provide a summary of the total incidental take 
authorization on an annual basis, as well as other information relevant 
to the negligible impact analysis. Table 9 shows information relevant 
to our negligible impact analysis concerning the total annual taking 
that could occur for each stock from NMFS' scientific research 
activities when considering incidental take that may be authorized for 
SWFSC, as well as take previously authorized for AFSC (84 FR 46788; 
September 5, 2019) and NWFSC (83 FR 36370; July 27, 2018). We authorize 
take by M/SI over the five-year period of validity for these 
regulations as indicated in Table 9 below. As noted previously, 
although some gear interactions may result in Level A harassment or the 
release of an uninjured animal, for the purposes of the negligible 
impact analysis, we assume that all of these takes could potentially be 
in the form of M/SI. Table 9 also summarizes annual amounts of take by 
Level B harassment that may be authorized.
    We previously authorized take of marine mammals incidental to 
fisheries research operations conducted by the AFSC (see 83 FR 37638 
and 84 FR 46788), and NWFSC (see 81 FR 38516 and 83 FR 36370). This 
take would occur to some of the same stocks for which we may authorize 
take incidental to SWFSC fisheries research operations. Therefore, in 
order to evaluate the likely impact of the take by M/SI in this rule, 
we consider not only other ongoing sources of human-caused mortality 
but the potential mortality authorized for AFSC/NWFSC. As used in this

[[Page 3864]]

document, other ongoing sources of human-caused (anthropogenic) 
mortality refers to estimates of realized or actual annual mortality 
reported in the SARs and does not include authorized or unknown 
mortality. Below, we consider the total taking by M/SI for SWFSC and 
previously authorized for AFSC/NWFSC together to produce a maximum 
annual M/SI take level (including take of unidentified marine mammals 
that could accrue to any relevant stock) and compare that value to the 
stock's PBR value, considering ongoing sources of anthropogenic 
mortality. PBR and annual M/SI values considered in Table 9 reflect the 
most recent information available (i.e., 2019 SARs).

                                 Table 9--Summary Information Related to SWFSC Annual Take Authorization, 2020-25 (CCE)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Percent of     SWFSC total M/
                                                       Annual Level B     estimated           SI           AFSC/NWFSC       Estimated       PBR minus
           Species \1\                   Stock           harassment      population     authorization,     total M/SI    maximum annual  annual M/SI (%)
                                                        authorization   abundance \2\    2020-25 \3\     authorization      M/SI \4\           \5\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale......................  ENP................             533             2.0                0                0               0              n/a
Humpback whale..................  CA/OR/WA...........              23             0.8                0                0               0              n/a
Minke whale.....................  Alaska.............              19             3.0                0                0               0              n/a
Sei whale.......................  CA/OR/WA...........              10             1.9                0                0               0              n/a
Fin whale.......................  CA/OR/WA...........             124             1.4                0                0               0              n/a
Blue whale......................  ENP................              18             1.2                0                0               0              n/a
Sperm whale.....................  CA/OR/WA...........              96             4.8                0                0               0              n/a
Kogia spp.......................  CA/OR/WA...........             213             5.2                2                1             0.6       19.2 (3.1)
Cuvier's beaked whale...........  CA/OR/WA...........             160             4.9                0                0               0              n/a
Baird's beaked whale............  CA/OR/WA...........              72             2.7                0                0               0              n/a
Mesoplodont beaked whales.......  CA/OR/WA...........              84             2.8                0                0               0              n/a
Bottlenose dolphin..............  CA/OR/WA Offshore..              62             3.2                9                3             2.8       9.4 (29.8)
                                  CA Coastal.........                            13.7                3                0             0.8      0.7 (114.3)
Striped dolphin.................  CA/OR/WA...........             883             3.0               14                7             4.6      237.2 (1.9)
Common dolphin (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  \9\ 183.5 (8.1)
Northern right whale dolphin....  CA/OR/WA...........             614             2.3               11                7               4      175.2 (2.3)
Risso's dolphin.................  CA/OR/WA...........             209             3.3               14                9               5      42.3 (11.8)
Killer whale....................  ENP Offshore.......              13             4.3                0                0             n/a              n/a
                                  West Coast                                      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            15.9                6            \6\ 2               2       65.6 (3.0)
                                  Monterey Bay.......                            19.5                                                 2       22.8 (8.8)
                                  San Francisco-                                  9.0                                                 2       47.4 (4.2)
                                   Russian River.
                                  Northern CA/                                    2.8                                                 2      348.8 (0.6)
                                   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.
                                  California.........                         \8\ 2.0                          \7\ 5-13             4.2      449.2 (0.9)
California sea lion.............  United States......           5,095             2.0               30               11             9.2       \9\ 13,690
                                                                                                                                                   (0.1)
Steller sea lion................  Eastern U.S........             914             2.1               10        \7\ 16-21               7      2,480 (0.3)
Harbor seal.....................  California.........           1,114             3.6               14            \6\ 6             4.8      1,598 (0.3)
                                  OR/WA Coast........                             4.5                             \6\ 8             5.2                ?
Northern elephant seal..........  California Breeding           4,916             2.7                5                1             1.6    4,873.2 (0.0)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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'
  fisheries research activities and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To reach
  this total, we add one to the total for each pinniped and cetacean that may be captured in trawl gear and one to the total for each pinniped that may
  be captured in hook and line gear. This represents the potential that the take of an unidentified pinniped or cetacean could accrue to any given stock
  captured in that gear in that area. The take authorization number is formulated as a five-year total; the annual average is used only for purposes of
  negligible impact analysis. We recognize that portions of an animal may not be taken in a given year.
\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 1). 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.

[[Page 3865]]

 
\9\ Calculation of residual PBR for these stocks includes M/SI that occurred incidental to SWFSC research activities. Assumed annual M/SI due to SWFSC
  is accounted for in this calculation through the take authorization number. Therefore, the assumed effects of SWFSC research on these stocks is
  overestimated as the take numbers are incorporated to the calculation through both the reduction of ``available'' PBR due to past interactions as well
  as through the take number that is then evaluated against the residual PBR.


                            Table 10--Annual Take Authorization in the AMLR, 2020-25
----------------------------------------------------------------------------------------------------------------
                                                     Estimated       Estimated
                                                  annual Level B  annual Level B   Total annual     Percent of
                     Species                        harassment    harassment (on-     Level B        estimated
                                                     (acoustic          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               5               7             0.0
Weddell seal....................................              74             225             224         \2\ 0.1
Crabeater seal..................................             884           2,704           3,588         \2\ 0.1
Leopard seal....................................              22              68              90         \2\ 0.0
----------------------------------------------------------------------------------------------------------------
\1\ There is no available abundance information for these species. See Small Numbers 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 9-10, given that the anticipated 
effects of SWFSC's research activities on marine mammals are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are described independently in the analysis below.
    The majority of stocks that may potentially be taken by M/SI (18 of 
22) fall below the insignificance threshold (i.e., 10 percent of 
residual PBR), while an additional two stocks do not have current PBR 
values and therefore are evaluated using other factors. We first 
consider stocks expected to be affected only by Level B harassment and 
those stocks that fall below the insignificance threshold. Next, we 
consider those stocks above the insignificance threshold (i.e., two 
stocks of bottlenose dolphin, Risso's dolphin, and 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 take 
authorization. We also produced estimates of incidents of potential 
Level B harassment due to disturbance of hauled-out pinnipeds that may 
result from the physical presence of researchers in the Antarctic; 
these estimates are combined with the estimates of Level B harassment 
that may result from use of active acoustic devices.
    Here, we consider authorized Level B harassment take less than five 
percent of population abundance to be ``de minimis,'' and authorized 
Level B harassment taking between 5-15 percent as ``low.'' A 
``moderate'' amount of authorized taking by Level B harassment would be 
from 15-25 percent, and ``high'' above 25 percent. Of the 53 stocks 
that may be subject to Level B harassment, the level of taking that may 
be authorized would represent a de minimis impact for 43 stocks and a 
low impact for an additional four stocks. We do not consider these 
impacts further for these 47 stocks.
    The level of taking by Level B harassment would represent a 
moderate impact on three additional stocks: The southern resident stock 
of killer whales and Morro Bay and Monterey Bay stocks of harbor 
porpoise. However, the values calculated for proportion of population 
potentially affected assume that all estimated takes species-wide would 
accrue to each of the potentially affected stocks. In the absence of 
information to

[[Page 3866]]

better refine stock-specific values, this worst-case proportion is an 
appropriate way to evaluate whether an amount of taking is greater than 
small numbers. For purposes of determining whether the total impacts to 
a stock represent no greater than a negligible impact, however, these 
values are overly conservative. We know that a majority of SWFSC use of 
active acoustic systems will not be concentrated in either of Morro Bay 
or Monterey Bay and, therefore, we conclude that the actual 
significance of taking by Level B harassment for these stocks of harbor 
porpoise will likely be significantly less than ``moderate.'' 
Similarly, the only potential avenue for effects to southern resident 
killer whales would be during the time when whales are foraging in 
coastal waters. Considering that whales are present in coastal waters 
for relatively brief portions of the year and that SWFSC research has 
limited overlap with the whales' relatively shallow foraging grounds in 
coastal waters, we again conclude that actual significance of any 
potential acoustic exposure for the stock would be less than moderate. 
Therefore, we do not consider these stocks further. For an additional 
three stocks (Arnoux' beaked whale and spectacled porpoise in 
Antarctica and dwarf sperm whales in the CCE whale), there is no 
abundance estimate upon which to base a comparison. However, we note 
that the anticipated number of incidents of take by Level B harassment 
are very low (2 and 10 for the Antarctic species, respectively, and 213 
combined for both stocks of Kogia spp.) and likely represent a de 
minimis impact on these stocks.
    As described previously, there is some minimal potential for 
temporary effects to hearing for certain marine mammals, but most 
effects would likely be limited to temporary behavioral disturbance. 
Effects on individuals that are taken by Level B harassment will likely 
be limited to reactions such as increased swimming speeds, increased 
surfacing time, or decreased foraging (if such activity were 
occurring), which are all reactions that are considered to be of low 
severity (e.g., Ellison et al., 2012). Individuals may move away from 
the source if disturbed; but, because the source is itself moving and 
because of the directional nature of the sources considered here, there 
is unlikely to be even temporary displacement from areas of 
significance and any disturbance would be of short duration. Although 
there is no information on which to base any distinction between 
incidents of harassment and individuals harassed, the same factors, in 
conjunction with the fact that SWFSC survey effort is widely dispersed 
in space and time, indicate that repeated exposures of the same 
individuals would be very unlikely. For these reasons, we do not 
consider the level of take by acoustic disturbance to represent a 
significant additional population stressor when considered in context 
with the level of take by M/SI for any species, including those for 
which no abundance estimate is available.
    Similarly, disturbance of pinnipeds on haul-outs by researchers 
(expected for Antarctic pinnipeds) is expected to be infrequent and 
cause only a temporary disturbance on the order of minutes. Monitoring 
results from other activities involving the disturbance of pinnipeds 
and relevant studies of pinniped populations that experience more 
regular vessel disturbance indicate that individually significant or 
population level impacts are unlikely to occur. When considering the 
individual animals likely affected by this disturbance, only a small 
fraction of the estimated population abundance of the affected stocks 
would be expected to experience the disturbance.
    For Risso's dolphin, short-finned pilot whale, and the offshore 
stock of bottlenose dolphin, maximum total potential M/SI due to NMFS' 
fisheries research activity (SWFSC, NWFSC, and AFSC combined) is 
approximately 12, 24, and 30 percent of residual PBR, respectively. For 
example, PBR for Risso's dolphin is currently set at 46 and the annual 
average of known ongoing anthropogenic M/SI is 3.7, yielding a residual 
PBR value of 42.3. The maximum combined annual average M/SI incidental 
to NMFS fisheries research activity is 5, or 11.8 percent of residual 
PBR. The only known source of other anthropogenic mortality for these 
species is in commercial fisheries. For the Risso's dolphin and 
offshore stock of bottlenose dolphin, such take is considered to be 
insignificant and approaching zero mortality and serious injury. This 
is not the case for the short-finned pilot whale; however, the annual 
take from fisheries (1.2) and from NMFS's fisheries research (0.8) are 
both very low. There are no other factors that would lead us to believe 
that take by M/SI of 24 percent of residual PBR would be problematic 
for this species.
    For the California coastal stock of bottlenose dolphin, maximum 
total potential M/SI due to NMFS' fisheries research activity (SWFSC, 
NWFSC, and AFSC combined) is approximately 114 percent of residual PBR. 
Although the maximum annual take by M/SI is low (0.8), the residual PBR 
is also low (0.7). (Note that there is no take by M/SI authorized for 
this stock other than for SWFSC activities.) Here we provide additional 
detail regarding the available information for the coastal stock of 
bottlenose dolphin and explain our conclusion that the calculated 
proportion of residual PBR presents an unrealistically conservative 
assessment of the potential impacts to the stock due to SWFSC fisheries 
research activity. First, the available information indicates that the 
PBR value is biased low. PBR is calculated in consideration of the 
minimum population size which, for coastal bottlenose dolphins, 
represents the minimum number of individually identifiable animals 
documented during mark-recapture surveys in 2009-11 (Carretta et al., 
2017). This number (346 animals) represents the minimum abundance, but 
estimates of population abundance resulting from the 2009-11 study 
range from 411-564 animals (Carretta et al., 2017). Even these higher 
abundance estimates represent marked animals only, and exclude the 
approximately 40 percent of animals that are not individually 
recognizable (Weller et al., 2016). In addition, the estimates based on 
the 2009-11 study were the highest ever for the population and included 
a high proportion (~75 percent) of previously uncatalogued dolphins 
(Weller et al., 2016). The number of individually identifiable animals 
from 2009-11 exceeded previous estimates for the abundance of the 
entire marked population. These facts suggest that the stock may have 
grown in the ten years since conclusion of the last abundance study. 
Finally, although the stock is confined to U.S. waters for management 
purposes, the biological stock is transboundary and an unknown 
additional number of dolphins are likely found in Mexico. Regarding 
anthropogenic M/SI that is assumed to be ongoing, current estimates are 
based on scant data. With 9 percent observer coverage in the coastal 
halibut/yellowtail gillnet fishery during 2010-14, no entanglements 
were observed, and none have been observed since 2003 (Carretta et al., 
2017). The basis for the assumption that a minimum of 1.6 dolphins are 
killed annually in fisheries was the discovery of two carcasses with 
evidence of entanglement from 2010-14. In addition, during this same 
period, one dolphin was found floating under a U.S. Navy marine mammal 
program dolphin pen enclosure dock and was assumed to have become 
entangled in the net curtain, and another dolphin became entrapped and 
drowned in a sea otter

[[Page 3867]]

research net. Both of these incidents could rightly be considered as 
unpredictable occurrences with little likelihood of recurring. However, 
they add 0.4 animals to the assumed amount of ongoing annual 
anthropogenic M/SI. None of NMFS' fisheries research activities on the 
west coast have ever resulted in an interaction with bottlenose 
dolphins. In summary, the available information leads us to conclude 
that the PBR value for the stock is likely unrealistically low and that 
the assumed annual anthropogenic M/SI value may be higher than is 
actually occurring. Therefore, we find that the potential total take of 
coastal bottlenose dolphin considered here represents a negligible 
impact on the stock.
    PBR is unknown for harbor seals on the Oregon and Washington 
coasts. The Oregon/Washington coast stock of harbor seal was considered 
to be stable following the most recent abundance estimates (in 1999, 
stock abundance estimated at 24,732). However, a Washington Department 
of Fish and Wildlife expert (S. Jeffries) stated an unofficial 
abundance of 32,000 harbor seals in Washington (Mapes, 2013). 
Therefore, it is reasonable to assume that at worst, the stocks have 
not declined since the last abundance estimates. Ongoing anthropogenic 
mortality is estimated at 10.6 harbor seals per year. Therefore, we 
reasonably assume that the maximum potential annual M/SI incidental to 
NMFS' fisheries research activities (5.2) is a small fraction of any 
sustainable take level that might be calculated for the stock.
    PBR is also undetermined for the dwarf sperm whale. However, a PBR 
of 19.2 is calculated for the pygmy sperm whale, and there are no 
additional known sources of anthropogenic M/SI for Kogia spp. Although 
it is possible that there are fewer dwarf sperm whales than pygmy sperm 
whales in the CCE, we reasonably assume that the maximum potential 
annual M/SI incidental to NMFS' fisheries research activities (0.6) is 
a small fraction of any sustainable take level that might be calculated 
for the stock.
    In summary, our negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality from the use of active acoustic devices may reasonably be 
considered discountable; (2) the anticipated incidents of Level B 
harassment from the use of active acoustic devices and physical 
disturbance of pinnipeds consist of, at worst, temporary and relatively 
minor modifications in behavior; (3) the predicted number of incidents 
of potential mortality are at insignificant levels for a majority of 
affected stocks; (4) consideration of additional factors for Risso's 
dolphin, short-finned pilot whale, and the offshore stock of bottlenose 
dolphin do not reveal cause for concern; (5) total maximum potential M/
SI incidental to NMFS fisheries research activity for coastal 
bottlenose dolphin, considered in conjunction with other sources of 
ongoing mortality and in context of the available information regarding 
stock abundance, presents only a minimal incremental addition to total 
M/SI; (6) available information regarding stocks for which no current 
PBR estimate is available indicates that total maximum potential M/SI 
is sustainable; and (7) the presumed efficacy of the planned mitigation 
measures in reducing the effects of the specified activity to the level 
of least practicable adverse impact. In combination, we believe that 
these factors demonstrate that the specified activity will have only 
short-term effects on individuals (resulting from Level B harassment) 
and that the total level of taking will not impact rates of recruitment 
or survival sufficiently to result in population-level impacts.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required monitoring and 
mitigation measures, we find that the total marine mammal take from the 
proposed activities will have a negligible impact on the affected 
marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(A) of the MMPA for specified 
activities. The MMPA does not define small numbers and so, in practice, 
where estimated numbers are available, NMFS compares the number of 
individuals taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. 
Additionally, other qualitative factors may be considered in the 
analysis, such as the temporal or spatial scale of the activities.
    Please see Tables 9 and 10 for information relating to this small 
numbers analysis. The total amount of taking is less than five percent 
for a majority of stocks, and the total amount of taking is less than 
one-third of the stock abundance for all stocks.
    Based on the analysis contained herein of the activity (including 
the required mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

Adaptive Management

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

[[Page 3868]]

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.
    NMFS evaluated information in the PEA, SPEA, and SWFSC's 
application, as well as the 2015 FONSI, and determined that the initial 
FONSI is sufficient to support issuance of these regulations and 
subsequent Letters of Authorization. NMFS has documented this 
determination in a memorandum for the record.

Endangered Species Act (ESA)

    There are multiple marine mammal species listed under the ESA with 
confirmed or possible occurrence in the proposed specified geographical 
regions (see Tables 1 and 2). The authorization of incidental take 
pursuant to the SWFSC's specified activity would not affect any 
designated critical habitat. OPR requested initiation of consultation 
with NMFS' West Coast Regional Office (WCRO) under section 7 of the ESA 
on the promulgation of five-year regulations and the subsequent 
issuance of LOAs to SWFSC under section 101(a)(5)(A) of the MMPA.
    WCRO issued a biological opinion to OPR and to the SWFSC 
(concerning the conduct of the specified activities) which concluded 
that the issuance of the authorizations is not likely to adversely 
affect any listed marine mammal species.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this action will not 
have a significant economic impact on a substantial number of small 
entities. SWFSC is the sole entity that would be subject to the 
requirements of these regulations, and the SWFSC is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. No comments were received regarding this 
certification or on the economic impacts of the rule more generally. As 
a result, a regulatory flexibility analysis is not required and none 
has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. However, this rule does 
not contain a collection-of-information requirement subject to the 
provisions of the PRA because the applicant is a Federal agency.

Waiver of Delay in Effective Date

    NMFS has determined that there is good cause under the 
Administrative Procedure Act (5 U.S.C. 553(d)(3)) to waive the 30-day 
delay in the effective date of this final rule. No individual or entity 
other than the SWFSC is affected by the provisions of these 
regulations. The SWFSC has requested that this final rule take effect 
on October 30, 2020, to accommodate the SWFSC's LOA expiring on October 
29, 2020, so as to not cause a disruption in research activities. The 
waiver of the 30-day delay of the effective date of the final rule will 
ensure that the MMPA final rule and LOA are in place by the time the 
previous authorizations expire. Any delay in finalizing the rule would 
result in either: (1) A suspension of planned research, which would 
disrupt the provision of vital data necessary for effective management 
of fisheries; or (2) the SWFSC's procedural non-compliance with the 
MMPA (should the SWFSC conduct research without an LOA), thereby 
resulting in the potential for unauthorized takes of marine mammals. 
Moreover, the SWFSC is ready to implement the regulations immediately 
and requested the waiver. For these reasons, NMFS finds good cause to 
waive the 30-day delay in the effective date. In addition, the rule 
authorizes incidental take of marine mammals that would otherwise be 
prohibited under the statute. Therefore, by granting an exception to 
the SWFSC, the rule will relieve restrictions under the MMPA, which 
provides a separate basis for waiving the 30-day effective date for the 
rule.

List of Subjects in 50 CFR Part 219

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

    Dated: December 14, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.


0
For reasons set forth in the preamble NOAA adds part 219 to read as 
follows:

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

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

Sec.
219.1 Specified activity and specified geographical region.
219.2 Effective dates.
219.3 Permissible methods of taking.
219.4 Prohibitions.
219.5 Mitigation requirements.

[[Page 3869]]

219.6 Requirements for monitoring and reporting.
219.7 Letters of Authorization.
219.8 Renewals and modifications of Letters of Authorization.
219.9-219.10 [Reserved]
Subpart B [Reserved]

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

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


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 January 15, 2021 
through January 15, 2026.


Sec.  219.3   Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 219.7, the Holder of the LOA (hereinafter ``SWFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in 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.

    (a) 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:
    (1) 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;
    (2) Take any marine mammal not specified in such LOA;
    (3) Take any marine mammal specified in such LOA in any manner 
other than as specified;
    (4) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (5) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.
    (b) [Reserved]


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.
    (a) General conditions. (1) SWFSC must take all necessary measures 
to coordinate and communicate in advance of each specific survey with 
the National Oceanic and Atmospheric Administration's (NOAA) Office of 
Marine and Aviation Operations (OMAO) or other relevant parties on non-
NOAA platforms to ensure that all mitigation measures and monitoring 
requirements described herein, as well as the specific manner of 
implementation and relevant event-contingent decision-making processes, 
are clearly understood and agreed upon.
    (2) SWFSC must coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (Commanding Officer/
master or designee(s), as appropriate) and scientific party in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (3) SWFSC must coordinate as necessary on a daily basis during 
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
    (4) When deploying any type of sampling gear at sea, SWFSC must at 
all times monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    (5) SWFSC must implement handling and/or disentanglement protocols 
as specified in guidance provided to SWFSC survey personnel.
    (b) Trawl survey protocols. (1) SWFSC must conduct trawl operations 
as soon as is practicable upon arrival at the sampling station.
    (2) SWFSC must initiate marine mammal watches (visual observation) 
at least 15 minutes prior to beginning of net deployment (or for the 
amount of time to travel between stations if less than 15 minutes) but 
must also conduct monitoring during any pre-set activities including 
CTD casts and plankton or bongo net hauls.
    (3) In the CCE, SWFSC must implement the move-on rule mitigation 
protocol, as described in this paragraph. If one or more marine 
mammals, with the exception of baleen whales, are observed within 1 
nautical mile (nmi) of the planned sampling location during the visual 
observation period, SWFSC must move on to another sampling location. 
If, after moving on, marine mammals remain within 1 nmi, the SWFSC must 
move again or skip the station. SWFSC may use best professional 
judgment in making these decisions but may not elect to conduct trawl 
survey activity when marine mammals other than baleen whales remain 
within the 1-nmi zone.
    (4) SWFSC must maintain visual monitoring effort during the entire 
period of time that trawl gear is in the water (i.e., throughout gear 
deployment, fishing, and retrieval). If marine mammals are sighted 
before the gear is fully removed from the water, SWFSC must take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If trawling operations have been suspended because of the 
presence of marine mammals, SWFSC may resume trawl operations when 
practicable only when the animals are believed to have departed the 1 
nmi area. SWFSC may use best professional judgment in making this 
determination.
    (6) SWFSC must implement standard survey protocols to minimize 
potential for marine mammal interactions, including maximum tow 
durations at target depth and maximum tow distance, and shall carefully 
empty the trawl as quickly as possible upon retrieval. Trawl nets must 
be cleaned prior to deployment.
    (7) SWFSC must install and use a marine mammal excluder device at 
all times when the Nordic 264 trawl net or any other net is used for 
which the device is appropriate.
    (8) SWFSC must install and use acoustic deterrent devices whenever 
any midwater trawl net is used, with two to four devices placed along 
the footrope and/or headrope of the net. SWFSC must ensure that the 
devices are

[[Page 3870]]

operating properly before deploying the net.
    (c) Pelagic longline survey protocols. (1) SWFSC must deploy 
longline gear as soon as is practicable upon arrival at the sampling 
station.
    (2) SWFSC must initiate marine mammal watches (visual observation) 
no less than 15 minutes (or for the duration of transit between 
locations, if shorter than 15 minutes) prior to both deployment and 
retrieval of longline gear.
    (3) SWFSC must implement the 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 nmi of the planned sampling location during the visual 
observation period, SWFSC must move on to another sampling location. 
If, after moving on, marine mammals remain within 1 nmi, the SWFSC must 
move again or skip the station. SWFSC may use best professional 
judgment in making these decisions but may not elect to conduct pelagic 
longline survey activity when animals remain within the 1-nmi zone.
    (4) SWFSC must maintain visual monitoring effort during the entire 
period of gear deployment and retrieval. If marine mammals are sighted 
before the gear is fully deployed or retrieved, SWFSC must take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, SWFSC may resume such 
operations when practicable only when the animals are believed to have 
departed the 1 nmi area. SWFSC may use best professional judgment in 
making this decision.
    (6) SWFSC must implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming.
    (d) Purse seine survey protocols. (1) SWFSC must conduct purse 
seine operations as soon as is practicable upon arrival at the sampling 
station.
    (2) SWFSC must conduct marine mammal watches (visual observation) 
prior to beginning of net deployment.
    (3) SWFSC must implement the 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 must either remain 
onsite or move on to another sampling location. If remaining onsite, 
the set must be delayed. If the animals depart or appear to no longer 
be at risk of interacting with the vessel or gear, a further 
observation period must be conducted. If no further observations are 
made or the animals still do not appear to be at risk of interaction, 
then the set may be made. If the vessel is moved to a different area, 
the move-on rule mitigation protocol would begin anew. If, after moving 
on, marine mammals remain at risk of interaction, the SWFSC must move 
again or skip the station. Marine mammals that are sighted further than 
500 m from the vessel must be monitored to determine their position and 
movement in relation to the vessel to determine whether the move-on 
rule mitigation protocol should be implemented. SWFSC may use best 
professional judgment in making these decisions.
    (4) SWFSC must maintain visual monitoring effort during the entire 
period of time that purse seine gear is in the water (i.e., throughout 
gear deployment, fishing, and retrieval). If marine mammals are sighted 
before the gear is fully removed from the water, SWFSC must take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If purse seine operations have been suspended because of the 
presence of marine mammals, SWFSC may resume seine operations when 
practicable only when the animals are believed to have departed the 
area. SWFSC may use best professional judgment in making this 
determination.
    (6) If any cetaceans are observed in a purse seine net, SWFSC must 
immediately open the net and free the animals.


Sec.  219.6   Requirements for monitoring and reporting.

    (a) Compliance coordinator. SWFSC must designate a compliance 
coordinator who shall be responsible for ensuring compliance with all 
requirements of any LOA issued pursuant to 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 
must occur prior to deployment of trawl, hook and line, and purse seine 
gear, respectively; throughout deployment of gear and active fishing of 
research gears (not including longline soak time); prior to retrieval 
of longline gear; and throughout retrieval of all research gear.
    (2) Marine mammal watches must be conducted by watch-standers 
(those navigating the vessel and/or other crew) at all times when the 
vessel is being operated.
    (3) SWFSC must monitor any potential disturbance of pinnipeds on 
ice, paying particular attention to the distance at which different 
species of pinniped are disturbed. Disturbance must be recorded 
according to a 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 must also dedicate a portion of training to discussion of 
best professional judgment, including use in any incidents of marine 
mammal interaction and instructive examples where use of best 
professional judgment was determined to be successful or unsuccessful.
    (3) SWFSC must coordinate with NMFS' Northwest Fisheries Science 
Center (NWFSC) regarding surveys conducted in the CCE, such that 
training and guidance related to handling procedures and data 
collection is consistent.
    (d) Handling procedures and data collection. (1) SWFSC must 
implement standardized marine mammal handling, disentanglement, and 
data collection procedures. These standard procedures will be subject 
to approval by NMFS's Office of Protected Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, SWFSC must collect necessary data to 
facilitate a serious injury determination.
    (3) SWFSC must provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring an individual aboard a vessel, 
assess the level of consciousness, remove fishing gear, return an 
individual to water, and log activities pertaining to the interaction.
    (4) SWFSC must record such data on standardized forms, which will 
be subject to approval by OPR. SWFSC must also answer a standard series 
of supplemental questions regarding the details of any marine mammal 
interaction.

[[Page 3871]]

    (e) Reporting. (1) SWFSC must report all incidents of marine mammal 
interaction to NMFS's Protected Species Incidental Take database within 
48 hours of occurrence and must provide supplemental information to OPR 
upon request. Information related to marine mammal interaction (animal 
captured or entangled in research gear) must include details of survey 
effort, full descriptions of any observations of the animals, the 
context (vessel and conditions), decisions made, and rationale for 
decisions made in vessel and gear handling.
    (2) SWFSC must submit annual reports including:
    (i) An annual summary report to OPR not later than 90 days 
following the end of a given year. SWFSC must provide a final report 
within 30 days following resolution of comments on the draft report.
    (ii) These reports must contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which predominant active 
acoustic sources were used;
    (B) Summary information regarding use of all hook and line, purse 
seine, and trawl gear, including number of sets, hook hours, tows, 
etc., specific to each gear;
    (C) Accounts of all incidents of significant marine mammal 
interactions, including circumstances of the event and descriptions of 
any mitigation procedures implemented or not implemented and why, and, 
for interactions due to use of pelagic longline or purse seine, whether 
the move-on rule was waived due to the presence of five or fewer 
California sea lions;
    (D) Summary information related to any on-ice disturbance of 
pinnipeds, including raw sightings data and the event-specific total 
counts of animals present, counts of reactions according to a three-
point scale of response severity and numbers of takes (differentiated 
by species and age class), the distance at which a pinniped is 
disturbed and the closest point of approach for each disturbance event;
    (E) A written evaluation of the effectiveness of SWFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any;
    (F) Final outcome of serious injury determinations for all 
incidents of marine mammal interactions where the animal(s) were 
released alive; and
    (G) A summary of all relevant training provided by SWFSC and any 
coordination with NWFSC or NMFS' West Coast Regional Office.
    (f) Reporting of injured or dead marine mammals. (1) In the event 
that personnel involved in the survey activities covered by the 
authorization discover an injured or dead marine mammal, SWFSC must 
report the incident to OPR and to the appropriate West Coast Regional 
Stranding Coordinator as soon as feasible. The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Condition of the animal(s) (including carcass condition if 
the animal is dead);
    (iv) Observed behaviors of the animal(s), if alive;
    (v) If available, photographs or video footage of the animal(s); 
and
    (vi) General circumstances under which the animal was discovered.
    (2) In the event of a ship strike of a marine mammal by any vessel 
involved in the activities covered by the authorization, SWFSC must 
report the incident to OPR and to the appropriate West Coast Regional 
Stranding Coordinator as soon as feasible. The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Vessel's speed during and leading up to the incident;
    (iv) Vessel's course/heading and what operations were being 
conducted (if applicable);
    (v) Status of all sound sources in use;
    (vi) Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    (vii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    (viii) Estimated size and length of animal that was struck;
    (ix) Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    (x) If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    (xi) Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    (xii) To the extent practicable, photographs or video footage of 
the animal(s).


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

[[Page 3872]]

the adaptive management provision in paragraph (c)(1) of this section) 
that do not change the findings made for the regulations or result in 
no more than a minor change in the total estimated number of takes (or 
distribution by species or years), OPR may publish a notice of proposed 
LOA in the Federal Register, including the associated analysis of the 
change, and solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 of this chapter and 
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; and extent or number not authorized by these regulations 
or subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) If OPR determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in LOAs issued pursuant to 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. 2020-27817 Filed 1-14-21; 8:45 am]
BILLING CODE 3510-22-P