[Federal Register Volume 86, Number 106 (Friday, June 4, 2021)]
[Proposed Rules]
[Pages 30080-30129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11188]



[[Page 30079]]

Vol. 86

Friday,

No. 106

June 4, 2021

Part II





Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 219





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to Northeast Fisheries Science Center 
Fisheries and Ecosystem Research; Proposed Rule

  Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed 
Rules  

[[Page 30080]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 210519-0110]
RIN 0648-BK39


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Northeast Fisheries Science Center 
Fisheries and Ecosystem Research

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

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS Office of Protected Resources (OPR) has received a 
request from the NMFS' Northeast Fisheries Science Center (NEFSC) for 
authorization to take marine mammals incidental to fisheries and 
ecosystem research conducted in the Atlantic Ocean, over the course of 
five years. This would be the second set of regulations and 5-year LOA 
issued to the NEFSC. The proposed regulations would be effective 
September 10, 2021 through September 9, 2026.
    As required by the Marine Mammal Protection Act (MMPA), NMFS is 
proposing regulations to govern that take, and requests comments on the 
proposed regulations. NMFS will consider public comments prior to 
making any final decision on the issuance of the requested MMPA 
authorization and agency responses will be summarized in the final 
announcement of our decision.

DATES: Comments and information must be received no later than July 6, 
2021.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2021-0053, by the following method:
     Electronic submission: Submit all public comments via the 
Federal e-Rulemaking Portal. Go to www.regulations.gov, enter 0648-BK39 
in the ``Search'' box, click the ``Comment Now!'' icon, complete the 
required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).

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

SUPPLEMENTARY INFORMATION: 

Availability

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

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization to incidentally take marine mammals must 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.

Purpose and Need for This Regulatory Action

    This proposed rule would establish a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take of marine mammals incidental to the NEFSC's fisheries research 
activities in the Atlantic Ocean.
    We received an application from the NEFSC requesting regulations 
and a 5-year LOA to take multiple species of marine mammals incidental 
to fisheries and ecosystem research in the Atlantic Ocean. Take by 
mortality or serious injury could occur incidental to the use of 
fisheries research gear. Take by Level B harassment could occur 
incidental to the use of active acoustic devices in the Atlantic coast 
region.

Legal Authority for the Regulatory Action

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

Summary of Major Provisions Within the Proposed Regulations

    The following provides a summary the major provisions within this 
proposed rulemaking for the NEFSC fisheries research activities in the 
Northwest Atlantic Ocean. They include, but are not limited to:
     Training scientists and vessel crew in marine mammal 
detection and identification, rule compliance, and marine mammal 
handling.
     Monitoring of the sampling areas to detect the presence of 
marine mammals before gear deployment and while gear is in the water.

[[Page 30081]]

     Implementing standard tow durations to reduce the 
likelihood of incidental take of marine mammals.
     Implementing the mitigation strategy known as the ``move-
on rule,'' which incorporates best professional judgment, when 
necessary during fisheries research.
     Removing gear from water if marine mammals are at-risk or 
interact with gear.
     Complying with applicable vessel speed restrictions and 
separation distances from marine mammals.
     Complying with applicable and relevant take reduction 
plans for marine mammals.

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 review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    In July 2016, the NEFSC published a Final Programmatic 
Environmental Assessment (PEA) for Fisheries Research Conducted and 
Funded by the NEFSC (NMFS 2016a) to consider the direct, indirect and 
cumulative effects to the human environment resulting from NEFSC's 
activities as well as OPR's 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) on August 3, 
2016. These documents are available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research.
    On September 18, 2020, NMFS announced the availability of a Draft 
Supplemental PEA for Fisheries Research Conducted and Funded by the 
Northeast Fisheries Science Center for review and comment (85 FR 
58339). 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 2016 PEA, or new research activities along the 
U.S. East Coast. 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 2016 PEA are 
presented in this analysis. The supplemental PEA is available at 
https://www.fisheries.noaa.gov/action/draft-supplemental-programmatic-environmental-assessment-nefsc-research-now-available.
    Information in the PEA, SPEA, NEFSC's application, and this notice 
collectively provide the environmental information related to proposed 
issuance of these regulations and subsequent incidental take 
authorization for public review and comment. We will review all 
comments submitted in response to this notice prior to concluding our 
NEPA process and making a final decision on NEFSC's request.

Summary of Request

    On September 2, 2020, NMFS received an application from NEFSC 
requesting promulgation of regulations and issuance of a 5-year LOA to 
take marine mammals incidental to fisheries and ecosystem research in 
the Atlantic Ocean. NEFSC subsequently submitted revised applications 
on October 29, 2020; November 19, 2020; and December 3, 2020. The 
December application was deemed adequate and complete on December 9, 
2020. In accordance with the MMPA, we published a notice of receipt 
(NOR) of the NEFSC's application in the Federal Register, requesting 
comments and information related to the NEFSC request for thirty days 
(85 FR 83901, December 23, 2020). We did not receive comments on the 
NOR.
    The NEFSC's request is for take of a small number of 10 species of 
marine mammals by mortality or serious injury incidental to gear 
interaction and 32 species or stocks by Level B harassment incidental 
to use of active acoustic devices during fisheries and ecosystem 
research. NMFS previously issued a LOA to NEFSC for similar work (81 FR 
64442, September 20, 2016); that LOA expires September 9, 2021. To 
date, NEFSC has complied with all the requirements (e.g., mitigation, 
monitoring, and reporting) of the current LOA and did not exceed 
authorized take for a species. NEFSC annual monitoring reports can be 
found at www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research.

Description of Proposed Activity

Overview

    The NEFSC is the research arm of NMFS in the Greater Atlantic 
Region (Maine to Virginia). The NEFSC plans, develops, and manages a 
multidisciplinary program of basic and applied research to generate the 
information necessary for the conservation and management of the 
region's living marine resources, including the region's marine and 
anadromous fish and invertebrate populations to ensure they remain at 
sustainable and healthy levels. The NEFSC collects a wide array of 
information necessary to evaluate the status of exploited fishery 
resources and the marine environment from fishery independent (i.e., 
non-commercial or recreational fishing) platforms. Surveys are 
conducted from NOAA-owned and operated vessels, NOAA chartered vessels, 
or research partner-owned or chartered vessels in the state and Federal 
waters of the Atlantic Ocean from Maine to Florida.
    The NEFSC plans to administer, fund, or conduct 59 fisheries and 
ecosystem research survey programs over the 5-year period the proposed 
regulations would be effective (Table 1). Of the 59 surveys, only 42 
involve gear and equipment with the potential to take marine mammals. 
Gear types include towed trawl nets fished at various levels in the 
water column, dredges, gillnets, traps, longline and other hook and 
line gear. Surveys using any type of seine net (e.g., gillnets), trawl 
net, or hook and line (e.g., longlines) have the potential for marine 
mammal interaction (e.g., entanglement, hooking) resulting in M/SI 
harassment. In addition, the NEFSC conducts hydrographic, 
oceanographic, and meteorological sampling concurrent with many of 
these surveys which requires the use of active acoustic devices (e.g., 
side-scan sonar, echosounders). These active sonars result in elevated 
sound levels in the water column, potentially causing behavioral 
disturbance rising to the level of harassment (Level B).

Dates and Duration

    NEFSC would conduct research year-round; however, certain surveys 
would occur seasonally (Table 1). The proposed regulations and 
associated LOA would be valid September 10, 2021 through September 9, 
2026.

Specified Geographical Region

    The NEFSC would conduct fisheries research activities off of the 
U.S. Atlantic coast within the Northeast U.S. Continental Shelf Large 
Marine Ecosystem (NE LME), an area defined as the 200 miles off the 
shoreline and reaching from the U.S.-Canada border to Cape Hatteras 
(Figure 1). The NE LME is divided into four areas: The Gulf of Maine 
(GOM), Georges Bank (GB), Southern New England (SNE), and the Mid-
Atlantic Bight (MAB). A small number of NEFSC surveys into the 
Southeast U.S. Continental Shelf LME

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(SE LME) and, rarely, north into the Scotian Shelf LME.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TP04JN21.000

BILLING CODE 3510-22-C

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    The Atlantic coast region extends from the Gulf of Maine (to the 
U.S. and Canada border) past Cape Hatteras to Florida. The region is 
characterized by its temperate climate and proximity to the Gulf 
Stream, and is generally considered to be of moderately high 
productivity, although the portion of the region from Cape Cod to Cape 
Hatteras is one of the most productive areas in the world due to 
upwellings along the shelf break created by the western edge of the 
Gulf Stream. Sea surface temperatures (SST) exhibit a broad range 
across this region, with winter temperatures ranging from 2-20 [deg]C 
in the north and 15-22 [deg]C in the south, while summer temperatures, 
consistent in the south at approximately 28 [deg]C, range from 15-27 
[deg]C in the northern portion.
    The northern portion of this region (i.e., north of Cape Hatteras) 
is more complex, with four major sub-areas: The Gulf of Maine, Georges 
Bank, southern New England, and the Mid-Atlantic Bight. Cold, low-
salinity water transports in the Labrador Current from the Arctic Ocean 
into the Gulf of Maine and exits through the Great South Channel; 
upwellings occur around Georges Bank. South of Cape Cod, there is 
strong stratification along the coast where large estuaries occur 
(e.g., Chesapeake Bay, Pamlico Sound).
    The Gulf Stream is highly influential on both the northern and 
southern portions of the region, but in different ways. Meanders of the 
current directly affect the southern portion of the Gulf Stream, where 
it is closer to shore, while warm-core rings indirectly affect the 
northern portion (Belkin et al., 2009). In addition, subarctic 
influences can reach as far south as the Mid-Atlantic Bight, but the 
convergence of the Gulf Stream with the coast near Cape Hatteras does 
not allow for significant northern influence into waters of the South 
Atlantic Bight.
    Gulf of Maine--The Gulf of Maine (GOM) is an enclosed coastal sea 
characterized by relatively cold waters and deep basins. Several 
geographic features bound the GOM including Brown's Bank on the east, 
Maine and Nova Scotia to the north, Maine, New Hampshire, and 
Massachusetts on the west, and Cape Cod and Georges Bank to the south. 
Retreating glaciers (18,000-14,000 years ago) formed a complex system 
of deep basins, moraines, and rocky protrusions, leaving behind a 
variety of sediment types including silt, sand, clay, gravel, and 
boulders. There exists patchy distribution of sediments on the seafloor 
throughout the GOM, with occurrence largely related to the bottom 
topography.
    Oceanic circulation in the GOM exhibits a general counterclockwise 
current, influenced primarily by cold water masses moving in from the 
Scotian Shelf and offshore. Although large-scale water patterns are 
generally counterclockwise around the GOM, many small gyres and minor 
currents do occur. Freshwater runoff from the many rivers along the 
coast into the GOM influences coastal circulation as well. These water 
movements feed into and affect the circulation patterns on Georges Bank 
and in Southern New England.
    Georges Bank--Georges Bank (GB) is an elongated extension of the 
northeastern U.S. continental shelf, characterized by a steep slope on 
its northern edge and a broad, flat, and gently sloping southern flank. 
The Gulf of Maine lies to the north of GB, the Northeast Channel 
(between GB and Browns Bank) is to the east; the continental slope lies 
to the south, and the Great South Channel separates GB and Southern New 
England to the west. Although the top of GB is predominantly 
characterized by sandy sediment, glacial retreat during the late 
Pleistocene era resulted in deposits of gravel along the northern edge 
of GB, and some patches of silt and clay can be found on the sea floor. 
The most dominant oceanographic features of GB include a weak but 
persistent clockwise gyre that circulates over the whole bank, strong 
tidal flows (mainly northwest and southeast) and strong but 
intermittent storm-induced currents. The strong tidal currents result 
in vertically well-mixed waters over the bank. The southwestern flow of 
shelf and slope water that forms a countervailing current to the Gulf 
Stream drives the clockwise GB gyre.
    Mid-Atlantic Bight--The Mid-Atlantic Bight (MAB) includes the 
continental shelf and slope waters from GB to Cape Hatteras, NC. The 
retreat of the last ice sheet shaped the morphology and sediments of 
the MAB. The continental shelf south of New England is broad and flat, 
dominated by fine grained sediments (sand and silt). Patches of gravel 
exist in places on the sea floor, such as on the western flank of the 
Great South Channel.
    The shelf slopes gently away from the shore out to approximately 
100 to 200 kilometers (km) (62 to 124 miles (mi)) offshore, where it 
transforms into the continental slope at the shelf break (at water 
depths of 100 to 200 m (328 to 656 ft). Along the shelf break, numerous 
deep-water canyons incise the slope and shelf. The sediments and 
topography of the canyons are much more heterogeneous than the 
predominantly sandy top of the shelf, with steep walls and outcroppings 
of bedrock and deposits of clay.
    The southwestern flow of cold shelf water feeding out of the GOM 
and off GB dominates the circulatory patterns in this area. The 
countervailing Gulf Stream provides a source of warmer water along the 
coast as warm-core rings and meanders break off from the Gulf Stream 
and move shoreward, mixing with the colder shelf and slope water. As 
the shelf plain narrows to the south (the extent of the continental 
shelf is narrowest at Cape Hatteras), the warmer Gulf Stream waters run 
closer to shore.
    Southern New England--The Southern New England (SNE) subarea 
extends from the Great South Channel in the east to the MAB in the 
west. The southwestern flow of cold shelf water feeding out of the GOM 
and off GB dominates the circulatory patterns in this area. The SNE 
continental shelf is a gently sloping region with smooth topography. 
The shelf is approximately 100 km (62 mi) wide, and the shelf break 
occurs at depths of between 100 to 200 m (328 to 656 ft). The 
continental slope extends from the shelf break to a depth of 2 km 
(6,562 ft). This zone has a relatively steep gradient, and the relief 
is moderately smooth. The continental rise (2 to 6 km; 500 to 19,700 
ft) is similar to the slope in having only gradual changes in 
bathymetry. However, the overall gradient of the continental rise is 
less than that of the continental slope (Theroux and Wigley, 1998). 
Sediments of the SNE subarea consist of fine-grained sand and silt. 
Patches of gravel exist in places on the sea floor, such as on the 
western flank of the Great South Channel. Currents and historic 
disposal of dredged material may influence water and sediment quality 
within the SNE.
    Southeast U.S. Continental Shelf Large Marine Ecosystem: This area 
covers the Atlantic Ocean extending approximately 930 miles from Cape 
Hatteras, NC south to the Straits of Florida (Yoder, 1991). The 
continental shelf in the region reaches up to approximately 120 miles 
offshore. The Gulf Stream Current influences the region with minor 
upwelling occurring along the Gulf Stream front. The area is 
approximately 115,000 square miles, includes several protected areas 
and coral reefs (Aquarone, 2008); numerous estuaries and bays, such as 
the Albemarle-Pamlico Sound, nearshore and barrier islands; and 
extensive coastal marshes that provide valuable ecosystem services and 
habitats for numerous marine and estuarine species. A six- to 12-mile 
wide coastal zone is characterized by high levels of primary

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production throughout the year, while offshore, on the middle and outer 
shelf, upwelling along the Gulf Stream front and intrusions from the 
Gulf Stream cause seasonal phytoplankton blooms. Because of its high 
productivity, this sub-region supports active commercial and 
recreational fisheries (Shertzer et al. 2009).

Detailed Description of Specific Activity

    The Federal Government has a trust responsibility to protect living 
marine resources in waters of the U.S., also referred to as Federal 
waters. These waters generally lie 3 to 200 nautical miles (nmi) from 
the shoreline. Those waters 3-12 nmi offshore comprise Federal 
territorial waters and those 12-to-200 nmi offshore comprise the 
Exclusive Economic Zone (EEZ), except where other nations have adjacent 
territorial claims. NOAA also conducts research to foster resource 
protection in state waters (i.e., estuaries and oceanic waters within 3 
nmi of shore). The U.S. government has also entered into a number of 
international agreements and treaties related to the management of 
living marine resources in international waters outside of the U.S. EEZ 
(i.e., the high seas). To carry out its responsibilities over Federal 
and international waters, Congress has enacted several statutes 
authorizing certain Federal agencies to administer programs to manage 
and protect living marine resources. Among these Federal agencies, NOAA 
has the primary responsibility for protecting marine finfish and 
shellfish species and their habitats. Within NOAA, NMFS has been 
delegated primary responsibility for the science-based management, 
conservation, and protection of living marine resources under statutes 
including the Magnuson-Stevens Fishery Conservation and Management Act 
(MSA), the Atlantic Coastal Fisheries Cooperative Management Act (ACA), 
and the Atlantic Striped Bass Conservation Act.
    Within NMFS, six Regional Fisheries Science Centers direct and 
coordinate the collection of scientific information needed to inform 
fisheries management decisions. Each Fisheries Science Center is a 
distinct entity and is the scientific focal point for a particular 
region. The NEFSC conducts research and provides scientific advice to 
manage fisheries and conserve protected species in the Atlantic coast 
region from Maine to northeast Florida. The NEFSC provides scientific 
information to support the Mid-Atlantic Fishery Management Council and 
other domestic fisheries management organizations. Specifically, NEFSC 
develops the scientific information required for fishery resource 
conservation, fishery development and utilization, habitat 
conservation, and protection of marine mammals and endangered marine 
species. Research is pursued to address specific needs in population 
dynamics, fishery biology and economics, engineering and gear 
development, and protected species biology. Specifically, research 
includes monitoring fish stock recruitment, abundance, survival and 
biological rates, geographic distribution of species and stocks, 
ecosystem process changes, and marine ecological research.
    The NEFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. NEFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. For 
other types of surveys, cooperating scientists may conduct research 
onboard non-NOAA vessels. The NEFSC proposes to administer and conduct 
59 survey programs over the 5-year period. Forty-two of the 59 total 
surveys/projects involve gear and equipment with the potential to take 
marine mammals (by mortality or serious injury (M/SI) or Level B 
harassment). We note the need for additional surveys could arise during 
the time period this proposed rule is effective, or some of the 
identified surveys could be eliminated or reduced in effort. Research 
activities associated with the requested LOA are not necessarily 
limited to the specific surveys shown in Table 1; however, any other 
surveys conducted by NEFSC would not be significantly different from 
the research analyzed herein or result in a change in the take request.
    The gear types used by NEFSC to conduct fisheries research include: 
Pelagic trawl gear used at various levels in the water column, pelagic 
and demersal longlines, bottom-contact trawls, anchored sinking 
gillnets, and other gear such as dredges and traps. The use of pelagic 
and bottom trawl nets, gillnets, fyke nets, and longline/hook and line 
gear have to potential to result in interaction (e.g., entanglement, 
hooking) with marine mammals. These gears and the methods of fishing 
are identical or similar to those described in the initial NEFSC 
proposed rule (80 FR 35942, July 9, 2015). Complete gear descriptions 
can also be found in Appendix B of the NMFS 2020 Draft Supplemental 
Programmatic Environmental Assessment available at https://www.fisheries.noaa.gov/action/draft-supplemental-programmatic-environmental-assessment-nefsc-research-now-available. Please refer to 
those documents for more information related to fishing gear.
    Additionally, a small set of research activities along the 
Penobscot River estuary in Maine have the potential to behaviorally 
disturb marine mammals due to the physical presence of researchers near 
haulout areas.
    Most of the vessel-based surveys use active acoustic devices. The 
NEFSC may conduct surveys aboard research vessels (R/V), including the 
NOAA Ship R/V Henry B. Bigelow, R/V Gordon Gunter, R/V Pisces, R/V 
Nauvoo, R/V Harvey, R/V Chemist, R/V Resolute, R/V Hassler, R/V C.E. 
Stillwell, and R/V Gloria Michelle; aboard R/V and fishing vessels (F/
V) owned and operated by cooperating agencies and institutions 
including the F/V Robert Michael, F/V Darana R, R/V Hugh R. Sharp, and 
F/V Eagle Eye II; or aboard charter vessels.
    A complete description of the long-term research surveys conducted 
by NEFSC can be found in section 1.4 of the LOA application. A complete 
description of the short-term cooperative research projects can be 
found in section 1.5 of the LOA application. Below we provide a summary 
table with information relevant to this proposed rule (Table 1).

[[Page 30085]]



                                                                       Table 1--Proposed NEFSC Fisheries Research Surveys
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                                                                                                                                                             Annual days at sea   Potential for
          Project name               Survey description                    Gear                     Specific gear     Area of operation        Season               (DAS)           take (Y/N)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Long-Term Research
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Benthic Habitat Survey..........  Assess habitat           Bottom Trawl........................  Conductivity,       Georges Bank (GB).  Summer or Fall....  20................               Y
                                   distribution and                                               Temperature, and
                                   condition, including                                           Depth (CTD), Van
                                   disturbance by                                                 Veen, Plankton
                                   commercial fishing and                                         trap, Beam Trawl,
                                   changes as the benthic                                         Dredge, Camera,
                                   ecosystem recovers                                             Sonar.
                                   from chronic fishing
                                   impacts. Also serves
                                   to collect data on
                                   seasonal migration of
                                   benthic species,
                                   collect bottom data
                                   for mapping, and
                                   provide indications of
                                   climate change through
                                   species shifts.
Fish Collection for Laboratory    Trawling/hook and line   Bottom Trawl........................  Net and twine       New York Bight,     April-November....  10................               Y
 Experiments.                      collection operations                                          shrimp trawl,       Sandy Hook Bay.
                                   undertake to capture                                           fishing poles.
                                   high quality fish for
                                   laboratory experiments.
Habitat Mapping Survey..........  Map shallow reef         Bottom Trawl........................  4-seam, 3 bridle    Ocean Shelf off MD  Summer............  11................               Y
                                   habitats of fisheries                                          bottom trawl,
                                   resource species,                                              beam trawl, CTD,
                                   including warm season                                          Van Veen,
                                   habitats of black sea                                          Plankton trap,
                                   bass, and locate                                               dredge, camera,
                                   sensitive habitats                                             sonar.
                                   (e.g., shallow
                                   temperate coral
                                   habitats) for habitat
                                   conservation.
Living Marine Resources Survey..  Determine the            Bottom Trawl........................  4-seam, 3 bridle    Cape Hatteras to    Spring............  11................               Y
                                   distribution,                                                  bottom trawl,       NJ.
                                   abundance, and                                                 beam trawl, CTD,
                                   recruitment patterns                                           Van Veen, sonar.
                                   for multiple species.
Massachusetts Division of Marine  The objective of this    Bottom Trawl........................  Otter trawl.......  Territorial waters  Spring and Fall...  60-72.............               Y
 Fisheries Bottom Trawl Surveys.   project is to track                                                                from RI to NH
                                   mature animals and                                                                 borders.
                                   determine juvenile
                                   abundance.
NEAMAP Near Shore Trawl Program-- This project provides    Bottom Trawl........................  Modified GoM        U.S.-Canada to NH-  Spring and Fall...  30-50.............               Y
 Northern Segment.                 data collection and                                            shrimp otter        MA border from
                                   analysis in support of                                         trawl.              shore to 300 ft
                                   single and multi-                                                                  depth.
                                   species stock
                                   assessments Gulf of
                                   Maine. It includes the
                                   Maine/New Hampshire
                                   inshore trawl program,
                                   conducted by Maine
                                   Department of Marine
                                   Resources (MDMR) in
                                   the northern segment.
NEAMAP Near Shore Trawl Program-- This project provides    Bottom Trawl........................  4-seam, 3-bridle    Montauk, NY to      Spring and Fall...  30-50.............               Y
 Southern Segment.                 data collection and                                            net bottom trawl    Cape Hatteras, NC
                                   analysis in support of                                         cookie sweep.       from 20 to 90 ft
                                   single and                                                                         depth.
                                   multispecies stock
                                   assessments in the Mid-
                                   Atlantic. It includes
                                   the inshore trawl
                                   program NEAMAP Mid-
                                   Atlantic to Southern
                                   New England survey,
                                   conducted by Virginia
                                   Institute of Marine
                                   Science, College of
                                   William and Mary
                                   (VIMS) in the southern
                                   segment.
NEFOP Observer Bottom Trawl       Certification training   Bottom Trawl........................  Contracted          Mid-Atlantic Bight  April-November (as  18................               Y
 Training Trips.                   for new NEFOP                                                  vessels' trawl      (MAB) and GB.       needed), day
                                   Observers.                                                     gear.                                   trips.
NEFSC Northern Shrimp Survey....  The objective of this    Bottom Trawl........................  4 seam modified     GOM...............  Summer............  22................               Y
                                   project is to                                                  commercial shrimp
                                   determine the                                                  trawl, positional
                                   distribution and                                               sensors, mini-
                                   abundance of northern                                          log, CTD.
                                   shrimp and collect
                                   related data.
NEFSC Standard Bottom Trawl       This project monitors    Bottom Trawl........................  4-seam, 3-bridle    Cape Hatteras to    Spring and Fall...  120...............               Y
 Surveys (BTS).                    abundance and                                                  bottom trawl.       Western Scotian
                                   distribution of mature                                                             Shelf.
                                   and juvenile fish and
                                   invertebrates.
NEFSC Bottom Trawl Survey Gear    Testing and efficiency   Bottom Trawl........................  4-seam, 3-bridle    Cape Hatteras to    Fall..............  14-20.............               Y
 Trials.                           evaluation of the                                              bottom trawl,       Western Scotian
                                   standardized 4-seam, 3-                                        twin trawls.        Shelf.
                                   bridle bottom trawl
                                   (doors, sweeps,
                                   protocols).

[[Page 30086]]

 
Atlantic Herring Survey.........  This operation collects  Pelagic Trawl.......................  4-seam, 3-bridle    GOM and Northern    Fall..............  34................               Y
                                   fisheries-independent                                          net bottom trawl,   GB.
                                   herring spawning                                               midwater rope
                                   biomass data and also                                          trawl, acoustics.
                                   includes survey
                                   equipment calibration
                                   and performance tests.
Atlantic Salmon Trawl Survey....  This is a targeted       Pelagic Trawl.......................  Modified mid-water  Inshore and         Spring............  21................               Y
                                   research effort to                                             trawl that fishes   offshore GOM.
                                   evaluate the marine                                            at the surface
                                   ecology of Atlantic                                            via pair trawling.
                                   salmon.
Deepwater Biodiversity..........  This project collects    Pelagic Trawl.......................  Deep-Sea acoustic/  Western North       Summer or Fall....  16................               Y
                                   fish, cephalopod and                                           optic/              Atlantic.
                                   crustacean specimens                                           oceanographic/
                                   from 500 to 2,000 m                                            eDNA system,
                                   for tissue samples,                                            trawl camera
                                   specimen photos, and                                           system.
                                   documentation of
                                   systematic
                                   characterization.
Penobscot Estuarine Fish          The objective of this    Pelagic Trawl.......................  Mamou shrimp trawl  Penobscot Estuary   Spring Summer and   12................               Y
 Community and Ecosystem Survey.   project is fish and                                            modified to fish    and Bay, ME.        Fall.
                                   invertebrate sampling                                          at surface.
                                   for biometric and
                                   population analysis of
                                   estuarine and coastal
                                   species.
Northeast Integrated Pelagic      The objective of this    Pelagic Trawl.......................  Mid-water trawls,   Cape Hatteras to    Summer and Fall...  80................               Y
 Survey.                           project is to assess                                           bong nets, CTD,     Western Scotian
                                   the pelagic components                                         Acoustic Doppler    Shelf.
                                   of the ecosystem                                               Profiler (ADCP),
                                   including water                                                acoustics.
                                   currents, water
                                   properties,
                                   phytoplankton, micro-
                                   zooplankton,
                                   mesozooplankton,
                                   pelagic fish and
                                   invertebrates, sea
                                   turtles, marine
                                   mammals, and sea birds.
NEFOP Observer Mid-Water Trawl    This program provides    Pelagic Trawl.......................  Various commercial  MAB and GB........  April-November as   5.................               Y
 Training Trip.                    certification training                                         nets.                                   needed (day
                                   for NEFOP Observers.                                                                                   trips).
Apex Predators Pelagic Longline   The objectives of this   Longline............................  Yankee and current  MD to Canada......  Spring............  30................               Y
 Shark Survey.                     survey are to: (1)                                             commercial
                                   Monitor the species                                            pelagic longline
                                   composition,                                                   gear. Configured
                                   distribution, and                                              according to NMFS
                                   abundance of pelagic                                           HMS Regulations.
                                   sharks in the U.S.
                                   Atlantic from Maryland
                                   to Canada; (2) tag
                                   sharks for migration
                                   and age validation
                                   studies; (3) collect
                                   morphological data and
                                   biological samples for
                                   age and growth,
                                   feeding ecology, and
                                   reproductive studies;
                                   and (4) provide time-
                                   series of abundance
                                   from this survey for
                                   use in Atlantic
                                   pelagic shark
                                   assessments.
Apex Predators Bottom Longline    The objectives of this   Longline............................  Florida style       RI to FL within 40  Spring............  47................               Y
 Coastal Shark Survey.             survey are to: (1)                                             bottom longline.    fathoms.
                                   Monitor the species
                                   composition,
                                   distribution, and
                                   abundance of sharks in
                                   coastal Atlantic
                                   waters from Florida to
                                   Delaware; (2) tag
                                   sharks for migration
                                   and age validation
                                   studies; (3) collect
                                   morphometric data and
                                   biological samples for
                                   age and growth,
                                   feeding ecology, and
                                   reproductive studies;
                                   and (4) provide time-
                                   series of abundance
                                   from this survey for
                                   use in Atlantic
                                   coastal shark
                                   assessments.

[[Page 30087]]

 
Apex Predators Pelagic Nursery    This project uses        Longline............................  Standard            GB to Grand Banks   Fall..............  21-55.............               Y
 Grounds Study.                    opportunistic sampling                                         commercial          off Newfoundland,
                                   on board a commercial                                          pelagic longline    Canada.
                                   swordfish longline                                             gear. Configured
                                   vessel to: (1) Monitor                                         according to NMFS
                                   the species                                                    Highly Migratory
                                   composition and                                                Species (HMS)
                                   distribution of                                                Regulations.
                                   juvenile pelagic
                                   sharks on the Grand
                                   Banks; (2) tag sharks
                                   for migration and age
                                   validation studies;
                                   and (3) collect
                                   morphometric data and
                                   biological samples for
                                   age and growth,
                                   feeding ecology, and
                                   reproductive studies.
                                   Data from this survey
                                   helps determine the
                                   location of pelagic
                                   shark nurseries for
                                   use in updating
                                   essential fish habitat
                                   designations.
Cooperative Atlantic States       This project determines  Longline and Gillnet................  Bottom Longline     FL to RI..........  Summer............  25 or 40..........               Y
 Shark Pupping and Nursery         the location of shark                                          Gear, Anchored
 (COASTSPAN) Longline and          nurseries, species                                             Sinking Gillnet.
 Gillnet Surveys.                  composition, relative
                                   abundance,
                                   distribution, and
                                   migration patterns. It
                                   is used to identify
                                   and refine essential
                                   fish habitat and
                                   provides standardized
                                   indices of abundance
                                   by species used in
                                   multiple species
                                   specific stock
                                   assessments. NEFSC
                                   conducts surveys in
                                   Delaware, New Jersey,
                                   and Rhode Island
                                   estuarine and coastal
                                   waters. Other areas
                                   are surveyed by
                                   cooperating
                                   institutions and
                                   agencies. In the NE
                                   Large Marine Ecosystem
                                   (LME), the Virginia
                                   Institute of Marine
                                   Science (VIMS) is a
                                   cooperating partner.
                                   South of Cape Hatteras
                                   the South Carolina
                                   Department of Natural
                                   Resources (SCDNR),
                                   University of North
                                   Florida (UNF), and
                                   Florida Atlantic
                                   University (FAU) are
                                   partners.
Cooperative Research Gulf of      The objective of this    COOP Western-Central Gulf of Maine    Longline..........  Western GOM         Spring and Fall...  60 stations/year                 Y
 Maine Longline Project.           project is to conduct    hard bottom longline survey.                              focused on sea                          eastern Maine, 90
                                   commercial cooperative                                                             mounts.                                 stations/year
                                   bottom longline sets                                                                                                       western-central
                                   to characterize                                                                                                            GOM.
                                   demersal species of
                                   the Western Gulf of
                                   Maine traditionally
                                   difficult to capture
                                   with traditional or
                                   research trawl gear
                                   due to the bottom
                                   topography.
NEFOP Observer Bottom Longline    This program provides    Longline............................  Commercial bottom   MAB and GB........  April-November as   5.................               Y
 Training Trips.                   certification training                                         longline gear.                          needed (day
                                   for NEFOP observers.                                                                                   trips).
Annual Assessments of Sea         These Atlantic Sea       Dredge..............................  Scallop dredges,    GPM, Georges Bank,  Dredge surveys Apr- 50-100............               N
 Scallop Abundance and             Scallop Research Set-                                          drop cameras,       Mid-Atlantic.       Sept, Camera
 Distribution.                     Aside (RSA) rotational                                         Other Habitat                           surveys June-Sept.
                                   area surveys endeavor                                          Camera (HabCam)
                                   to monitor scallop                                             Versions.
                                   biomass and derive
                                   estimates of Total
                                   Allowable Catch (TAC)
                                   for annual scallop
                                   catch specifications.
                                   Additionally, the
                                   surveys monitor
                                   recruitment, growth,
                                   and other biological
                                   parameters such as
                                   meat weight, shell
                                   height and gonadal
                                   somatic indices.
NEFOP Observer Scallop Dredge     This program provides    Dredge..............................  Turtle deflector    MAB and GB........  April-November as   6.................               N
 Training Trips.                   certification training                                         dredge.                                 needed (day
                                   for NEFOP observers.                                                                                   trips).
Annual Standardized Sea Scallop   The objective of this    Dredge..............................  New Bedford         NC to GB..........  Summer............  36................               N
 Survey.                           project is to                                                  dredge, HabCam V4.
                                   determine distribution
                                   and abundance of sea
                                   scallops and collect
                                   related data for
                                   Ecosystem Management
                                   from concurrent stereo-
                                   optic images. It is
                                   conducted by the NEFSC.
Surfclam and Ocean Quahog Dredge  The objective of this    Dredge..............................  Hydraulic-jet       Southern VA to GB.  Summer............  15................               N
 Survey.                           project is to                                                  dredge.
                                   determine distribution
                                   and abundance of
                                   Surfclam/ocean quahog
                                   and collect related
                                   data.

[[Page 30088]]

 
Coastal Maine Telemetry Network.  The objective of this    Other...............................  Fixed position      Penobscot River     Year round in GOM   10................               Y
                                   project is to monitor                                          acoustic            estuary and bay,    and Apr.-Nov. in
                                   tagged animals                                                 telemetry array     GOM.                nearshore areas.
                                   entering the Penobscot                                         receivers on
                                   Bay System and exiting                                         moorings spaced
                                   the system into the                                            250-400 m apart.
                                   Gulf of Maine.
Deep-sea Coral Survey...........  The objective of this    Other...............................  Remotely Operated   Continental shelf   Summer............  16................               Y
                                   program is to                                                  Vehicles (ROVs),    margin, slope,
                                   determine the species                                          CTD, towed          and submarine
                                   diversity, community                                           cameras, ADCP,      canyons and deep
                                   composition,                                                   acoustics.          basins: GOM to
                                   distribution and                                                                   Virginia.
                                   extent of deep sea
                                   coral and sponge
                                   habitats.
Diving Operations...............  The objective of this    Other...............................  Wire mesh cages,    Long Island Sound.  Year round........  20................               N
                                   project is to collect                                          lantern nets.
                                   growth data on hard
                                   clams, oysters and bay
                                   scallops.
Gulf of Maine Ocean Observing     This project services    Other...............................  ADCP on vessel and  GOM and Northern    Summer............  12................               N
 System Mooring Cruise.            oceanographic moorings                                         moorings.           GB.
                                   operated by the
                                   University of Maine.
Hydroacoustics Surveys..........  This project consists    Acoustic only.......................  Split-beam and      Penobscot Bay and   Spring............  25................               Y
                                   of mobile transects                                            DIDSON.             estuary.
                                   conducted throughout
                                   the estuary and bay to
                                   study fish biomass and
                                   distribution.
Marine Estuaries Diadromous       This project is a fish   Other...............................  1 m and 2 m fyke    Penobscot Bay and   April-November....  100...............               N
 Survey.                           community survey at                                            nets.               estuary.
                                   fixed locations.
NEFOP Observer Gillnet Training   This program provides    Other...............................  gill net gear.....  MAB and GB........  April-November as   10................               N
 Trips.                            certification training                                                                                 needed (day
                                   for NEFOP Observers.                                                                                   trips).
Nutrients and Frontal Boundaries  The objective of this    Other...............................  ADP, CTD,           MAB...............  Feb., May-June,     10................               N
                                   project is to                                                  Hydroacoustics.                         Aug, and Nov.
                                   characterize nutrient
                                   patterns associated
                                   with distinct water
                                   masses and their
                                   boundaries off of
                                   coastal New Jersey and
                                   Long Island in
                                   association with
                                   biological sampling.
Ocean Acidification.............  The objective of this    Other...............................  CTD, YSI,           Hudson River        Spring............  10................               N
                                   project is to develop                                          multinutrient       Coastal waters.
                                   baseline pH                                                    analyzer,
                                   measurements in the                                            Kemmerer bottle.
                                   Hudson River water.
AUV Pilot Studies...............  This program provides    Other...............................  AUV...............  MA state waters,    June..............  5.................               N
                                   gear and platform                                                                  GB.
                                   testing.
Rotary Screw Trap (RSTs) Survey.  This project is          Other...............................  RST...............  Estuaries on        April 15-June 15..  60................               N
                                   designed to collect                                                                coastal Maine
                                   abundance estimates of                                                             rivers.
                                   Migrating Atlantic
                                   salmon smolts and
                                   other anadromous
                                   species.
Trawling to Support Finfish       The objective of this    Other...............................  Combination bottom  Long Island Sound.  Summer............  30................               Y
 Aquaculture Research.             project is to collect                                          trawl, shrimp
                                   broodstock for                                                 trawl, gillnet.
                                   laboratory spawning
                                   and rearing and
                                   experimental studies.
DelMarVa Habitat                  The objective of this    Other...............................  ADCP, CTD, YSI,     Coastal waters off  August............  5.................               N
 Characterization.                 project is to                                                  Plankton net,       DE, MD and VA.
                                   characterize and                                               video sled, Ponar
                                   determine key hard                                             grab, Kemmerer
                                   bottom habitats in                                             bottle, sonar.
                                   coastal ocean off the
                                   DelMarVa Peninsula as
                                   an adjunct to the
                                   DelMarVa Reef Survey.
DelMarVa Reefs Survey...........  The objective of this    Other...............................  HABCAM, CTD.......  Coastal waters off  August............  5.................               N
                                   project is                                                                         DE, MD and VA.
                                   determination of
                                   extent and
                                   distribution of rock
                                   outcrops and coral
                                   habitats and their use
                                   by black sea bass and
                                   other reef fishes.

[[Page 30089]]

 
Miscellaneous Fish Collections    The James J. Howard      Other...............................  Bottom trawl,       New York Bight      Spring and Fall...  not stated........               Y
 and Experimental Survey Gear      Sandy Hook Marine                                              lobster and fish    estuary waters.
 Trials.                           Laboratory                                                     pots, beam trawl,
                                   occasionally supports                                          seine net,
                                   short-term research                                            trammel nets.
                                   projects requiring
                                   small samples of fish
                                   for various purposes
                                   or to test alterations
                                   of survey gear. These
                                   small and sometimes
                                   opportunistic sampling
                                   efforts have used a
                                   variety of gear types
                                   other than those
                                   listed under Status
                                   Quo projects. The
                                   gears and effort
                                   levels listed here are
                                   representative of
                                   potential requests for
                                   future research
                                   support.
Opportunistic Hydrographic        This program consists    Other...............................  Plankton net,       Southeast LME       Early Summer......  not stated........               N
 Sampling.                         of opportunistic                                               expendable          depths <300 m.
                                   plankton and                                                   bathythermograph.
                                   hydrographic sampling
                                   during ship transit.
Monkfish RSA....................  Monkfish Research Set-   Other...............................  Commercial          Mid-Atlantic and    April-December      100-200 sets/year.               Y
                                   Aside (RSA) surveys                                            gillnets of         Georges Bank.       (end of fishing     Sets left for 2-3
                                   endeavor to monitor                                            various sizes,                          year).              days.
                                   Monkfish biomass and                                           short durations
                                   derive estimates of                                            for sets.
                                   Total Allowable Catch
                                   (TAC) for annual
                                   Monkfish catch
                                   specifications.
                                   Additionally, the
                                   surveys monitor
                                   recruitment, growth,
                                   and other biological
                                   parameters.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Short-Term Cooperative Projects
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Survey Projects.................  Cooperative Industry     Trawl...............................  Bottom Trawl......  GOM, GB, SNE, MAB.  Summer and Fall...  550 tows/year.....               Y
                                   based surveys to
                                   enhance data for
                                   flatfish utilizing
                                   cookie sweep gear on
                                   commercial platforms.
Survey Projects.................  Cooperative Industry     Trawl...............................  Pelagic Trawl.....  GOM, GB, SNE, MAB.  Summer and Fall     30 tows/year......               Y
                                   based catchability                                                                                     Summer and Fall.
                                   studies for Monkfish,
                                   Longfin squid, other.
Trawl Comparison Research.......  Twin trawl and paired    Twin Bottom Trawl...................  Trawl nets with     GB, SNE, MAB......  Summer and Fall...  100 DAS...........               Y
                                   vessel comparisons of                                          two types of
                                   Standardized Bigelow                                           sweeps or doors.
                                   Trawl to test
                                   rockhopper and cookie
                                   sweeps and varying
                                   trawl doors
                                   performance on
                                   commercial platforms.
Survey Projects.................  Pot and trap             Pot survey..........................  Pots and Traps....  SNE, Rhode Island   Spring and fall     2,650 pot sets/                  Y
                                   catchability studies                                                               Bight, Nantucket    for black sea       year.
                                   for Scup and Black Sea                                                             Sound, MAB waters   bass. Year round
                                   bass.                                                                              from shore to       for scup.
                                                                                                                      shelf edge.
Conservation Engineering          Gear and net             Trawl...............................  Bottom Trawl......  GOM, GB, SNE, MAB.  Spring, Summer and  ~500 tows per year               Y
 Projects.                         conservation                                                                                           Fall.               total for all
                                   Cooperative work.                                                                                                          bottom trawl
                                                                                                                                                              conservation
                                                                                                                                                              projects.
Conservation Engineering          Varied gear and          Trawl...............................  Bottom Trawl......  GOM, GB, SNE, MAB.  Spring, Summer and  ..................               Y
 Projects.                         efficiency testing of                                                                                  Fall.
                                   fisheries applications.
Conservation Engineering          Cooperative Squid        Trawl...............................  Bottom Trawl &      GOM, GB, SNE, MAB.  Spring, Summer and  ..................               Y
 Projects.                         Trawls and studies for                                         Beam trawl.                             Fall.
                                   squid catchability and
                                   selectivity.
Conservation Engineering          Commercial scallop       Dredge..............................  Dredge............  GB, SNE, MAB......  April-December      > 1,700 dredge                   N
 Projects.                         dredge finfish and                                                                                     (end of fishing     tows/year for all
                                   turtle excluder                                                                                        year).              dredge
                                   research. Scallop                                                                                                          conservation
                                   dredge finfish and                                                                                                         projects.
                                   turtle excluder
                                   research.
Conservation Engineering          Commercial hydrodynamic  Dredge..............................  Hydrodynamic        GB, SNE, MAB......  April-December      ..................               N
 Projects.                         turtle deflector                                               dredge.                                 (end of fishing
                                   dredge testing.                                                                                        year).
Tagging Projects................  Winter Flounder tagging  Trawl...............................  Bottom Trawl &      Coastal waters in   Spring and Summer.  up to 650 trawls/                Y
                                   projects. Winter                                               Otter trawl.        GOM New Hampshire                       year.
                                   flounder migration                                                                 to Stonington/Mt.
                                   patterns.                                                                          Desert Island, ME.
Tagging Projects................  Spiny dogfish tagging    Hook & Line; Gillnet................  Hook & Line and     GOM and GB waters   Spring, Summer and  Long line: 5 sets/               Y
                                   projects. Spiny                                                Gillnet.            adjacent to Cape    Fall.               trip, 15 total.
                                   dogfish tagging north                                                              Cod, MA.                                Gillnet: 5 sets/
                                   and south of Cape Cod,                                                                                                     trip, 15 total.
                                   and Cusk & NE multi-
                                   species tagging.

[[Page 30090]]

 
Tagging Projects................  Monkfish tagging         Gillnet.............................  Gillnet...........  GOM, SNE, MAB.....  September-December  18-20 DAS, 10                    Y
                                   projects.                                                                                                                  short-duration
                                                                                                                                                              sets/day, 180-200
                                                                                                                                                              sets total.
Ropeless Lobster Trap Research..  Research to develop      Lobster Pots/Traps..................  Acoustic/           GOM, SNE, MAB       Summer and Fall...  50-100 DAS, 500                  N
                                   ropeless gear/devices                                          mechanical          (Inshore and                            sets, singles and
                                   to mitigate/eliminate                                          releases for        Offshore).                              up to 40 pots per
                                   interactions with                                              ropeless lobster                                            set.
                                   protected species                                              gear and float
                                   (whales and turtles)                                           lines.
                                   by utilizing
                                   commercial lobster
                                   gear.
Rod and Reel Tagging of Atlantic  Use of rod and reel to   Rod and Reel........................  Acoustic tags.....  ME, Greenland.....  Summer and Fall...  200-500 tags                     N
 Salmon.                           capture, tag, release                                                                                                      applied total.
                                   Atlantic salmon in
                                   international and US
                                   waters.
Continuous Plankton Recorder      A towed continuous       Towed array.........................  CPR...............  ME to Nova Scotia.  Summer and Fall...  24 DAS............               N
 (CPR) Transect Surveys: GOM.      plankton recording
                                   device is deployed
                                   from vessels of
                                   opportunity in the
                                   Gulf of Maine, monthly.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 30091]]

Description of NEFSC's Active Acoustic Devices

    NEFSC's fisheries surveys may use a wide range of active acoustic 
devices for remotely sensing bathymetric, oceanographic, and biological 
features of the environment. Most of these sources involve relatively 
high frequency, directional, and brief repeated signals tuned to 
provide sufficient focus and resolution on specific objects. The NEFSC 
may also use passive listening sensors (i.e., remotely and passively 
detecting sound rather than producing it), which do not have the 
potential to impact marine mammals. NEFSC active acoustic sources 
include various echosounders (e.g., multibeam systems), scientific 
sonar systems, positional sonars (e.g., net sounders for determining 
trawl position), and environmental sensors (e.g., acoustic Doppler 
current profilers). The sources are characterized as non-impulsive, 
intermittent sources.
    Mid- and high-frequency underwater acoustic sources typically used 
for scientific purposes operate by creating an oscillatory overpressure 
through rapid vibration of a surface, using either electromagnetic 
forces or the piezoelectric effect of some materials. A vibratory 
source based on the piezoelectric effect is commonly referred to as a 
transducer. Transducers are usually designed to excite an acoustic wave 
of a specific frequency, often in a highly directive beam, with the 
directional capability increasing with operating frequency. The main 
parameter characterizing directivity is the beam width, defined as the 
angle subtended by diametrically opposite ``half power'' (-3 dB) points 
of the main lobe. For different transducers at a single operating 
frequency the beam width can vary from 180[deg] (almost 
omnidirectional) to only a few degrees. Transducers are usually 
produced with either circular or rectangular active surfaces. For 
circular transducers, the beam width in the horizontal plane (assuming 
a downward pointing main beam) is equal in all directions, whereas 
rectangular transducers produce more complex beam patterns with 
variable beam width in the horizontal plane.
    The types of active sources employed in fisheries acoustic research 
and monitoring may be considered in two broad categories here, based 
largely on their respective operating frequency (e.g., within or 
outside the known audible range of marine species) and other output 
characteristics (e.g., signal duration, directivity). As described 
below, these operating characteristics result in differing potential 
for acoustic impacts on marine mammals.
    The types of active sources employed in fisheries acoustic research 
and monitoring, based largely on their relatively high operating 
frequencies and other output characteristics (e.g., signal duration, 
directivity), should be considered to have very low potential to cause 
effects to marine mammals that would rise to the level of a ``take,'' 
as defined by the MMPA. Acoustic sources operating at high output 
frequencies (>180 kHz) that are outside the known functional hearing 
capability of any marine mammal are unlikely to be detected by marine 
mammals. Although it is possible that these systems may produce 
subharmonics at lower frequencies, this component of acoustic output 
would also be at significantly lower SPLs. While the production of 
subharmonics can occur during actual operations, the phenomenon may be 
the result of issues with the system or its installation on a vessel 
rather than an issue that is inherent to the output of the system. Many 
of these sources also generally have short duration signals and highly 
directional beam patterns, meaning that any individual marine mammal 
would be unlikely to even receive a signal that would likely be 
inaudible.
    Acoustic sources present on most NEFSC fishery research vessels 
include a variety of single, dual, and multi-beam echosounders (many 
with a variety of modes), sources used to determine the orientation of 
trawl nets, and several current profilers with lower output frequencies 
that certain marine mammals may detect (e.g., 10-180 kHz). However, 
while likely potentially audible to certain species, these sources also 
have generally short ping durations and are typically focused (highly 
directional) to serve their intended purpose of mapping specific 
objects, depths, or environmental features. These characteristics 
reduce the likelihood of an animal receiving or perceiving the signal. 
A number of these sources, particularly those with relatively lower 
output frequencies coupled with higher output levels can be operated in 
different output modes (e.g., energy can be distributed among multiple 
output beams) that may lessen the likelihood of perception by and 
potential impact on marine mammals.
    The acoustic system used during a particular NEFSC survey is 
optimized for surveying under specific environmental conditions (e.g., 
depth and bottom type). Lower frequencies of sound travel further in 
the water (i.e., good range) but provide lower resolution (i.e., are 
less precise). Pulse width and power may also be adjusted in the field 
to accommodate a variety of environmental conditions. Signals with a 
relatively long pulse width travel further and are received more 
clearly by the transducer (i.e., good signal-to-noise ratio) but have a 
lower range resolution. Shorter pulses provide higher range resolution 
and can detect smaller and more closely spaced objects in the water. 
Similarly, higher power settings may decrease the utility of collected 
data. Power level is also adjusted according to bottom type, as some 
bottom types have a stronger return and require less power to produce 
data of sufficient quality. Power is typically set to the lowest level 
possible in order to receive a clear return with the best data. Survey 
vessels may be equipped with multiple acoustic systems; each system has 
different advantages that may be utilized depending on the specific 
survey area or purpose. In addition, many systems may be operated at 
one of two frequencies or at a range of frequencies. We summarize 
characteristics of these sources below and in Table 2.
    1. Multi-Frequency Narrow Beam Scientific Echosounders--
Echosounders and sonars work by transmitting acoustic pulses into the 
water that travel through the water column, reflect off the seafloor, 
and return to the receiver. Water depth is measured by multiplying the 
time elapsed by the speed of sound in water (assuming accurate sound 
speed measurement for the entire signal path), while the returning 
signal itself carries information allowing ``visualization'' of the 
seafloor. Multi-frequency split-beam sensors are deployed from NEFSC 
survey vessels to acoustically map the distributions and estimate the 
abundances and biomasses of many types of fish; characterize their 
biotic and abiotic environments; investigate ecological linkages; and 
gather information about their schooling behavior, migration patterns, 
and avoidance reactions to the survey vessel. The use of multiple 
frequencies allows coverage of a broad range of marine acoustic survey 
activity, ranging from studies of small plankton to large fish schools 
in a variety of environments from shallow coastal waters to deep ocean 
basins. Simultaneous use of several discrete echosounder frequencies 
facilitates accurate estimates of the size of individual fish, and can 
also be used for species identification based on differences in 
frequency-dependent acoustic backscattering between species. The NEFSC 
operates Simrad EK500 and EK60 systems, which

[[Page 30092]]

transmits and receives at six frequencies ranging from 18 to 333 kHz.
    2. Multibeam Echosounder and Sonar--Multibeam echosounders and 
sonars operate similarly to the devices described above. However, the 
use of multiple acoustic ``beams'' allows coverage of a greater area 
compared to single beam sonar. The sensor arrays for multibeam 
echosounders and sonars are usually mounted on the keel of the vessel 
and have the ability to look horizontally in the water column as well 
as straight down. Multibeam echosounders and sonars are used for 
mapping seafloor bathymetry, estimating fish biomass, characterizing 
fish schools, and studying fish behavior. The NEFSC operates the Simrad 
ME70 system, which is mounted to the hull of the research vessels and 
emits frequencies in the 70-120 kHz range.
    3. Single-Frequency Omnidirectional Sonar--Low-frequency, high-
resolution, long range fishery sonars operate with user selectable 
frequencies between 20-30 kHz, which provide longer range and prevent 
interference from other vessels. These sources provide omnidirectional 
imaging around the source with three different vertical beamwidths 
available (single or dual vertical view and 4-5[deg] variable for tilt 
angles from 0 to 45[deg] from horizontal). At the 30-kHz operating 
frequency, the vertical beamwidth is less than 7[deg] and can be 
electronically tilted from +10 to -80[deg], which results in 
differential transmitting beam patterns. The cylindrical multi-element 
transducer allows the omnidirectional sonar beam to be electronically 
tilted down to -60[deg], allowing automatic tracking of schools of fish 
within the entire water volume around the vessel. The NEFSC operates 
the Simrad SX90 system.
    4. Acoustic Doppler Current Profiler (ADCP)--An ADCP is a type of 
sonar used for measuring water current velocities simultaneously at a 
range of depths. Whereas current depth profile measurements in the past 
required the use of long strings of current meters, the ADCP enables 
measurements of current velocities across an entire water column. The 
ADCP measures water currents with sound, using the Doppler effect. A 
sound wave has a higher frequency when it moves towards the sensor 
(blue shift) than when it moves away (red shift). The ADCP works by 
transmitting ``pings'' of sound at a constant frequency into the water. 
As the sound waves travel, they ricochet off particles suspended in the 
moving water, and reflect back to the instrument. Due to the Doppler 
effect, sound waves bounced back from a particle moving away from the 
profiler have a slightly lowered frequency when they return. Particles 
moving toward the instrument send back higher frequency waves. The 
difference in frequency between the waves the profiler sends out and 
the waves it receives is called the Doppler shift. The instrument uses 
this shift to calculate how fast the particle and the water around it 
are moving. Sound waves that hit particles far from the profiler take 
longer to come back than waves that strike close by. By measuring the 
time it takes for the waves to return to the sensor, and the Doppler 
shift, the profiler can measure current speed at many different depths 
with each series of pings.
    An ADCP anchored to the seafloor can measure current speed not just 
at the bottom, but at equal intervals to the surface. An ADCP 
instrument may be anchored to the seafloor or can be mounted to a 
mooring or to the bottom of a boat. ADCPs that are moored need an 
anchor to keep them on the bottom, batteries, and a data logger. 
Vessel-mounted instruments need a vessel with power, a shipboard 
computer to receive the data, and a GPS navigation system so the ship's 
movements can be subtracted from the current velocity data. ADCPs 
operate at frequencies between 75 and 300 kHz.
    5. Net Monitoring Systems--During trawling operations, a range of 
sensors may be used to assist with controlling and monitoring gear. Net 
sounders give information about the concentration of fish around the 
opening to the trawl, as well as the clearances around the opening and 
the bottom of the trawl; catch sensors give information about the rate 
at which the codend is filling; symmetry sensors give information about 
the optimal geometry of the trawls; and tension sensors give 
information about how much tension is in the warps and sweeps. The 
NEFSC uses the NetMind System which measures door spread and monitors 
the door height off of the bottom and operates at 30 and 200 kHz. The 
NEFSC also uses a Simrad ITI Catch Monitoring System, which allows 
monitoring of the exact position of the gear and of what is happening 
in and around the trawl.

                       Table 2--Operating Characteristics of NEFSC Active Acoustic Sources
----------------------------------------------------------------------------------------------------------------
                                                                 Single ping
                                   Operating        Maximum     duration (ms)     Orientation/       Nominal
    Active acoustic system        frequencies    source level   and repetition   directionality     beamwidth
                                                                  rate (Hz)                         (degrees)
----------------------------------------------------------------------------------------------------------------
Simrad EK500 and EK60 narrow   18, 38, 70, 120,  224 dB......  Variable; most   Downward         7[deg] at 38
 beam echosounders.             200, 333 kHz;                   common           looking.         kHz, 11[deg]
                                primary                         settings are 1                    at 18 kHz.
                                frequencies                     ms and 0.5 Hz.
                                italicized.
Simrad ME70 multibeam          70-120 kHz......  205 dB......  0.06-5 ms; 1-4   Primarily        140[deg].
 echosounder.                                                   Hz.              downward
                                                                                 looking.
Simrad SX90 narrow beam sonar  20-30 kHz.......  219 dB......  Variable.......  Omnidirectional  4-5[deg]
                                                                                                  (variable for
                                                                                                  tilt angles
                                                                                                  from 0-45[deg]
                                                                                                  from
                                                                                                  horizontal).
Teledyne RD Instruments ADCP,  75 kHz..........  224 dB......  0.2 Hz.........  Downward         30[deg].
 Ocean Surveyor.                                                                 looking.
Simrad ITI Catch Monitoring    27-33 kHz.......  214 dB......  0.05-0.5 Hz....  Downward         40[deg].
 System.                                                                         looking.
Raymarine SS260 transducer     50, 200 kHz.....  217 dB......  Unknown........  Downward         19[deg] at 50
 for DSM300 (surrogate for                                                       looking.         kHz, 6[deg] at
 FCV-292).                                                                                        200 kHz.
Simrad EQ50..................  50, 200 kHz.....  210 dB......  Variable.......  Downward         16[deg] at 50
                                                                                 looking.         kHz, 7[deg] at
                                                                                                  200 kHz.
NetMind......................  30, 200 kHz.....  190 dB......  Unknown........  Downward         50[deg].
                                                                                 looking.
----------------------------------------------------------------------------------------------------------------

    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of NEFSC's LOA application summarize available

[[Page 30093]]

information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the potentially affected 
species. Species and stock information is also provided in NMFS' 2015 
proposed rule associated with the current LOA (80 FR 39542; July 9, 
2015), NMFS's 2016 Final Programmatic EA (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research) and, where updates 
are necessary, NMFS 2019 draft supplemental programmatic EA (available 
at https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-northeast-fisheries-science-center-fisheries-and). Additional 
information regarding population trends and threats may be found in 
NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. For taxonomy, we follow Committee on 
Taxonomy (2020). PBR is 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 (as described in NMFS's SARs). PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al., 
2020). All values presented in Table 3 are the most recent available at 
the time of publication and are available in the draft 2020 SARs 
(available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                            Table 3--Marine Mammal Present Within the Northeast U.S. Continental Shelf Large Marine Ecosystem
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,                Total
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent     PBR \3\   annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae (right whales):
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E/D; Y              368 (0, 356, 2020) \4\        0.8   \5\ 18.6
Family Balaenopteridae (rorquals):
    Blue whale \5\..................  Balaenoptera musculus..  Western North Atlantic.  E/D; Y              Unk (n/a, 402, 1980-          0.8          0
                                                                                                             2008).
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -; N                21,968 (0.31, 17,002,         170   7 8 10.6
                                       acutorostrata                                                         2016).
                                       acutorostrata.
    Sei whale.......................  B. borealis borealis...  Nova Scotia............  E/D; Y              6,292 (1.02, 3,098,           6.2    \9\ 1.2
                                                                                                             2016).
    Fin whale.......................  B. physalus physalus...  Western North Atlantic.  E/D; Y              6,802 (0.24, 5,573,            11  \10\ 2.35
                                                                                                             2016).
    Humpback whale..................  Megaptera novaeangliae   Gulf of Maine..........  E/D; Y              1,393 (0.15, 1,375,            22    \11\ 58
                                       novaeangliae.                                                         2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  Western North Atlantic.  E/D; Y              4,349 (0.28, 3,451,           3.9          0
                                                                                                             2016).
Family Kogiidae:
    Pygmy sperm whale...............  Kogia breviceps........  Western North Atlantic.  -; N                7,750 (0.38, 5,689,            46          0
                                                                                                             2016).
    Dwarf sperm whale...............  K. sima................  Western North Atlantic.  -; N                7,750 (0.38, 5,689,            46          0
                                                                                                             2016).
Family Ziphiidae (beaked whales):
    Northern bottlenose whale.......  Hyperoodon ampullatus..  Western North Atlantic.  -; N                Unk...................        Unk          0
    Blainville's beaked whale.......  Mesplodon densirostris.  Western North Atlantic.  -; N                10,107 (0.27, 8,085,           81        0.2
                                                                                                             2016) \12\.
    Sowerby's beaked whale..........  M. bidens..............  Western North Atlantic.  -; N                10,107 (0.27, 8,085,           81          0
                                                                                                             2016) \12\.
    Gervais' beaked whale...........  M. europaeus...........
    True's beaked whale.............  M. mirus...............
    Cuvier's beaked whale...........  Ziphius cavirostris....  Western North Atlantic.  -; N                5,744 (0.36, 4,282,            43        0.2
                                                                                                             2016).
Family Delphinidae:
    Short-beaked common dolphin.....  Delphinus delphis        Western North Atlantic.  -; N                172,825 (0.55,              1,125    \8\ 289
                                       delphis.                                                              112,531, 2007).
    Pygmy killer whale..............  Feresa attenuata.......  Western North Atlantic.  -; N                Unk...................        Unk        Unk
    Short-finned pilot whale........  Globicephala             Western North Atlantic.  -; N                28,924 (0.24, 23,637,         236        160
                                       macrorhynchus.                                                        2016).
    Long-finned pilot whale.........  G. melas...............  Western North Atlantic.  -; N                39,215 (0.30, 30,627,         306         21
                                                                                                             2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -; N                35,493 (0.19, 30,289,         303       54.3
                                                                                                             2016).
    Fraser's dolphin................  Lagenodelphis hosei....  Western North Atlantic.  -; N                Unk...................        Unk          0
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -; N                93,233 (0.71, 54,443,         544         26
                                                                                                             2016).
    White-beaked dolphin............  L. albirostris.........  Western North Atlantic.  -; N                536,016 (0.31,              4,153          0
                                                                                                             415,344, 2016).
    Killer whale....................  Orcinus orca...........  Western North Atlantic.  -; N                Unk...................        Unk          0
    Melon-headed whale..............  Peponocephala electra..  Western North Atlantic.  -; N                Unk...................        Unk          0
    Pantropical spotted dolphin.....  Stenella attenuata.....  Western North Atlantic.  -; N                6,593 (0.52, 4,367,            44          0
                                                                                                             2016).
    Clymene dolphin.................  S. clymene.............  Western North Atlantic.  -; N                4,237 (1.03, 2,071,            21          0
                                                                                                             2016.
    Striped dolphin.................  S. coeruleoalba........  Western North Atlantic.  -; N                67,036 (0.29, 52,939,         529          0
                                                                                                             2016).
    Atlantic spotted dolphin........  S. frontalis...........  Western North Atlantic.  -; N                39,921 (0.27, 32,032,         320          0
                                                                                                             2016).

[[Page 30094]]

 
    Spinner dolphin.................  S. longirostris........  Western North Atlantic.  -; N                4,102 (0.99, 2,045,            20          0
                                                                                                             2016).
    Rough-toothed dolphin...........  Steno bredanensis......  Western North Atlantic.  -; N                136 (1.0, 67, 2016)...        0.7          0
    Bottlenose dolphin..............  Tursiops truncatus       Western North Atlantic   -; N                62,851 (0.23, 51,914,         519         28
                                       truncatus.               (WNA) Offshore.                              2016).
                                                               WNA Northern Migratory   -/D; Y              6,639 (0.41, 4,759,            48  \13\ 1.2-
                                                                Coastal.                                     2016).                                 21.5
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena        Gulf of Maine/Bay of     -; N                95,543 (0.31, 74,034,         851    \8\ 217
                                       phocoena.                Fundy Stock.                                 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal.......................  Halichoerus grypus       Western North Atlantic.  -; N                27,131 (0.19, 23,158,       1,389  \8\ 4,729
                                       grypus.                                                               2016).
    Harbor seal.....................  Phoca vitulina vitulina  Western North Atlantic.  -; N                75,834 (0.15, 66,884,       2,006    \8\ 350
                                                                                                             2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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. NMFS automatically designates
  any species or stock listed under the ESA as depleted and as a strategic stock under the MMPA.
\2\ NMFS marine mammal stock assessment reports at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock
  abundance. In some cases, abundance and PBR is unknown (Unk) and the CV is not applicable.
\3\ These values, found in NMFS' SARs, represent PBR and annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, subsistence hunting, and ship strike). In some cases PBR is unknown (Unk) because the minimum population size cannot be
  determined. Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or as unknown (Unk).
\4\ Abundance estimate taken from Pace et al., 2021.
\5\ Total M/SI of 18.6 for this species is model-derived and not broken down by cause. The fishery contribution of 6.85 is observed interactions only.
\6\ Given the small proportion of the distribution range that has been sampled and considering the low number of blue whales encountered and
  photographed, the current data, based on photo-identification, do not allow for an estimate of abundance of this species in the Northwest Atlantic
  with a minimum degree of certainty (Sears et al. 1987; Hammond et al. 1990; Sears et al. 1990; Sears and Calambokidis 2002; Fisheries and Oceans
  Canada 2009).
\7\ The total estimated human-caused mortality and serious injury to the Canadian East Coast minke whale stock is estimated as 10.6 per year (9.15
  attributable to fisheries).
\8\ The NEFSC has historically taken this species in NEFSC research surveys (2004-2015) (see Tables 6-8).
\9\ The total estimated human-caused mortality and serious injury to the Nova Scotia sei whale stock is estimated as 1.2 per year (0.4 attributable to
  fisheries).
\10\ The total estimated human-caused mortality and serious injury to the Western North Atlantic fin whale stock is estimated as 2.35 per year (1.55
  attributable to fisheiries).
\11\ Total M/SI of 58 for this species is model-derived and not broken down by cause. The fishery contribution of 9.5 is observed interactions obly.
\12\ The total number of this species of beaked whale off the eastern U.S. and Canadian Atlantic coast is unknown, and seasonal abundance estimates are
  not available for this stock. However, several estimates of the undifferentiated complex of beaked whales (Ziphius and Mesoplodon spp.) from selected
  regions are available for select time periods (Barlow et al. 2006) as well as two estimates of Mesoplodon spp. beaked whales alone (Waring et al.,
  2015).
\13\ The Northern migratory stock of common bottlenose dolphins may interact with unobserved fisheries. Therefore, a range of human-caused mortality and
  serious injury for this stock is presented.

    As indicated above, all 35 number species (comprising 37 managed 
stocks) in Table 3 temporally and spatially co-occur with the surveys 
provided in Table 1 to the degree that take is reasonably likely to 
occur, and we have proposed authorizing it. While beluga 
(Delphinapterus leucas), Bryde's (Balaenoptera edeni), false killer 
(Pseudorca crassidens) whales, harp seals (Pagophilus groenlandica) and 
hooded seals (Cystophora cristata) have been documented in the area, 
these occurrence records are rare and are considered beyond the normal 
range of the species.
    In addition, the manatee (Trichechus manatus latirostris) may be 
found in the MAB and SE LME. However, manatee are managed by the U.S. 
Fish and Wildlife Service and are not considered further in this 
document.
    A full description of the biology, ecology, and threats to marine 
mammals listed in Table 3 can be found in NMFS proposed rule for the 
initial LOA (80 FR 39542; July 9, 2015), NEFSC's application, and NMFS' 
Programmatic Environmental Assessment (NMFS, 2016). Please refer to 
those documents for those descriptions. Table 3 updates information 
regarding abundance and human interaction and below we update on take 
reduction planning, unusual mortality events, and biologically 
important areas.
    Take reduction planning--Take reduction plans 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. 
NMFS convenes Take Reduction Teams to develop these plans.
    For marine mammals in specified geographic region of NEFSC research 
programs, there are currently four take reduction plans in effect (the 
Atlantic Large Whale Take Reduction Plan, the Bottlenose Dolphin Take 
Reduction Plan, the Harbor Porpoise Take Reduction Plan, and the 
Pelagic Longline Take Reduction Plan). As discussed earlier in the 
``Proposed Mitigation'' section, the NEFSC and NEFSC cooperative 
research projects comply with applicable TRP mitigation measures and 
gear requirements specified for their respective fisheries and areas.
    The Atlantic Large Whale Take Reduction Plan (ALWTRP)--The goal of 
this plan is to reduce mortality/serious injury (M/SI) of North 
Atlantic right, humpback, fin, and minke whales in several northeast 
fisheries that use lobster trap/pots and gillnets. Gear modification 
requirements and restrictions vary by location, date, and

[[Page 30095]]

gear type but may include the use of weak links, and gear marking and 
configuration specifications. Detailed requirements may be found in the 
regional guides to gillnet and pot/trap gear fisheries available at: 
http://www.greateratlantic.fisheries.noaa.gov/Protected/whaletrp/.
    Of the species/stocks of concern in the ALWTRP, the NEFSC has 
requested the authorization of incidental M/SI harassment for the minke 
whale only (see ``Estimated Take by Incidental Harassment'' later in 
this document).
    The Bottlenose Dolphin Take Reduction Plan--The goal of this plan 
is to reduce M/SI of coastal bottlenose dolphins incidental to the 
North Carolina inshore gillnet, Southeast Atlantic gillnet, 
Southeastern U.S. shark gillnet, U.S. Mid-Atlantic coastal gillnet, 
Atlantic blue crab trap/pot, Mid-Atlantic haul/beach seine, North 
Carolina long haul seine, North Carolina roe mullet stop net, and 
Virginia pound net fisheries (71 FR 24776, April 26, 2006). The 
following general requirements were implemented: Spatial/temporal 
gillnet restrictions, gear proximity (fishermen must stay within a set 
distance of gear), gear modifications, non-regulatory conservation 
measures, and a revision to the large mesh gillnet size restriction. 
Detailed requirements may be found at: http://www.nmfs.noaa.gov/pr/interactions/trt/bdtrp.htm.
    Of the species/stocks of concern in the take reduction plan, the 
NEFSC has requested the authorization of incidental M/SI for two stocks 
of bottlenose dolphins, one of which belongs to a coastal stock covered 
in the take reduction plan (see ``Estimated Take by Incidental 
Harassment'' later in this document).
    The Harbor Porpoise Take Reduction Plan--The goal of this plan is 
to reduce interactions between harbor porpoises and commercial gillnet 
gear fisheries in the New England and the Mid-Atlantic areas. 
Management includes seasonal time and area closures that correspond 
with peak seasonal abundances of harbor porpoises and gear modification 
requirements such as the use of pingers, floatline length, twine size, 
tie downs, net size, net number, and numbers of nets per string. 
Detailed requirements may be found at: http://www.greateratlantic.fisheries.noaa.gov/protected/porptrp/.
    The NEFSC has requested the authorization of incidental M/SI 
harassment for harbor porpoises (see ``Estimated Take by Incidental 
Harassment'' later in this document).
    The Pelagic Longline Take Reduction Plan--The plan addresses M/SI 
of long-finned and short-finned pilot whales as well as Risso's, 
common, and Atlantic white-sided dolphins in commercial pelagic 
longline fishing gear in the Atlantic. Regulatory measures include 
limiting mainline length to 20 nautical miles or less within the Mid-
Atlantic Bight and posting an informational placard on careful handling 
and release of marine mammals in the wheelhouse and on working decks of 
the vessel. Detailed requirements are on the internet at: http://www.greateratlantic.fisheries.noaa.gov/Protected/mmp/atgtrp/.
    Of the species/stocks of concern in the take reduction plan, the 
NEFSC has requested the authorization of incidental M/SI harassment for 
Risso's, common, Atlantic spotted dolphin, and Atlantic white-sided 
dolphins (see ``Estimated Take by Incidental Harassment'' later in this 
document).
    Unusual Mortality Events (UME)--The MMPA defines a UME 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 22 formally recognized UMEs in the 
Atlantic coast region involving species under NMFS' jurisdiction. Four 
of those 22 UME are currently open and involve the following species: 
North Atlantic right whales (NARWs), humpback whales, minke whales, and 
harbor and gray seals.
    NARW UME--Beginning in 2017, elevated mortalities in NARWs have 
been documented, primarily in Canada but some in the U.S. and were 
collectively declared an Unusual Mortality Event (UME). In 2017, there 
were a total of 17 confirmed dead stranded whales (12 in Canada; 5 in 
the United States) and in 2018, three confirmed dead stranded whales in 
the United States. In 2019, nine dead whales stranded in Canada, and 
one dead whale stranded in the United States. In 2020, two mortalities 
were documented. To date in 2021, two mortalities has been documented. 
The current total confirmed mortalities for the UME are 34 dead 
stranded whales (21 in Canada; 13 in the United States), and the 
leading category for the cause of death for this UME is ``human 
interaction,'' specifically from entanglements or vessel strikes. 
Additionally, since 2017, 15 live free-swimming non-stranded whales 
have been documented with serious injuries from entanglements or vessel 
strikes. More information on this UME can be found at https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
    Atlantic Humpback Whale UME--Since January 2016, elevated humpback 
whale mortalities have occurred along the Atlantic coast from Maine 
through Florida. In total, 147 whales have stranded along the eastern 
seaboard. The majority of strandings have occurred from the Outer 
Banks, NC to Massachusetts. Partial or full necropsy examinations were 
conducted on approximately half of the whales. Of the whales examined, 
about 50 percent had evidence of human interaction, either ship strike 
or entanglement. More information on this UME can be found at https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    Atlantic Minke Whale UME--Since January 2017, elevated minke whale 
mortalities have occurred along the Atlantic coast from Maine through 
South Carolina. In total 105 whales have stranded, the majority along 
the New England coast. More information on this UME can be found at 
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.
    Northeast Pinniped UME--Since July 2018, elevated numbers of harbor 
seal and gray seal mortalities have occurred across Maine, New 
Hampshire and Massachusetts. Additionally, seals showing clinical signs 
have stranded as far south as Virginia, although not in elevated 
numbers, therefore the UME investigation now encompasses all seal 
strandings from Maine to Virginia. In total, 3,152 seals have stranded 
along the mid-Atlantic and New England coast. Full or partial necropsy 
examinations have been conducted on some of the seals and samples have 
been collected for testing. Based on tests conducted so far, the main 
pathogen found in the seals is phocine distemper virus. More 
information about this UME can be found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.
    Of these species involved in active UMEs, the NEFSC has requested, 
and we propose to authorize, the incidental take, by mortality or 
serious injury, of minke whales, and harbor and gray seals. The NEFSC 
has also requested, and we are proposing to authorize, take by Level B 
harassment for each of these species incidental to the use of active 
acoustic equipment during fisheries and ecosystem research. See 
``Estimated Take'' later in this document for more

[[Page 30096]]

information regarding the proposed take.

Biologically Important Areas

    In 2015, NOAA's Cetacean Density and Distribution Mapping Working 
Group identified Biologically Important Areas (BIAs) for 24 cetacean 
species, stocks, or populations in seven regions (US East Coast, Gulf 
of Mexico, West Coast, Hawaiian Islands, Gulf of Alaska, Aleutian 
Islands and Bering Sea, and Arctic) within U.S. waters through an 
expert elicitation process. BIAs are reproductive areas, feeding areas, 
migratory corridors, and areas in which small and resident populations 
are concentrated. BIAs are region-, species-, and time-specific. A 
description of the types of BIAs found within NEFSC fishery research 
areas follows:
    Reproductive Areas: Areas and months within which a particular 
species or population selectively mates, gives birth, or is found with 
neonates or other sensitive age classes.
    Feeding Areas: Areas and months within which a particular species 
or population selectively feeds. These may either be found consistently 
in space and time, or may be associated with ephemeral features that 
are less predictable but can be delineated and are generally located 
within a larger identifiable area.
    Migratory Corridors: Areas and months within which a substantial 
portion of a species or population is known to migrate; the corridor is 
typically delimited on one or both sides by land or ice.
    Small and Resident Population: Areas and months within which small 
and resident populations occupying a limited geographic extent exist.
    The delineation of BIAs does not have direct or immediate 
regulatory consequences. Rather, the BIA assessment is intended to 
provide the best available science to help inform analyses and planning 
for applicants, and to support regulatory and management decisions 
under existing authorities, and to support the reduction of 
anthropogenic impacts on cetaceans and to achieve conservation and 
protection goals. In addition, the BIAs and associated information may 
be used to identify information gaps and prioritize future research and 
modeling efforts to better understand cetaceans, their habitat, and 
ecosystems. Table 4 provides a list of BIAs found within NEFSC 
fisheries research areas.

                        Table 4--Biologically Important Areas Within NEFSC Research Areas
----------------------------------------------------------------------------------------------------------------
             BIA name                    Species              BIA type           Time of year      Size (km\2\)
----------------------------------------------------------------------------------------------------------------
Southwestern Gulf of Maine and     Minke whale........  Feeding............  March-Nov..........          54,341
 George's Bank.
Eastern Atlantic.................  NARW...............  Migration..........  North: March-April;         269,448
                                                                              South: Nov-Dec.
East of Montauk Point............  Fin whale..........  Feeding............  March-Oct..........           2,933
Great South Channel and George's   NARW...............  Feeding............  April-June.........          12,247
 Bank Shelf.
Cape Cod Bay and MA Bay..........  NARW...............  Feeding............  Feb-April..........           3,149
Southern Gulf of Maine...........  Fin whale..........  Feeding............  Year-round.........          18,015
Jeffreys Ledge...................  NARW...............  Feeding............  June-July; Oct-Dec.             702
Gulf of Maine/Stellwagon Bank/     Humpback whale.....  Feeding............  March-Dec..........          47,701
 Great South Channel.
Gulf of Maine....................  NARW...............  Reproduction.......  Nov-Jan............           8,214
Central Gulf of Main--Parker       Minke whale........  Feeding............  March-Nov..........           2,256
 Ridge and Cashes Ledge.
Gulf of Maine....................  Harbor porpoise....  Small and resident.  July-Sept..........          12,211
Gulf of Maine....................  Sei whale..........  Feeding............  May-Nov............          56,609
Northern Gulf of Maine...........  Fin whale..........  Feeding............  June-Oct...........           6,146
----------------------------------------------------------------------------------------------------------------

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. Generalized hearing ranges were 
chosen based on the approximately 65 dB threshold from the normalized 
composite audiograms, with the exception for lower limits for low-
frequency cetaceans where the lower bound was deemed to be biologically 
implausible and the lower bound from Southall et al. (2007) retained. 
Marine mammal hearing groups and their associated hearing ranges are 
provided in Table 5.

                  Table 5--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
              Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen      7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,   150 Hz to 160 kHz.
 toothed whales, beaked whales,
 bottlenose whales).
High-frequency (HF) cetaceans (true       275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true  50 Hz to 86 kHz.
 seals).

[[Page 30097]]

 
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).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Thirty-eight marine mammal species (33 cetacean and 2 pinniped (2 
phocid) species) have the reasonable potential to co-occur with the 
proposed survey activities. Please refer to Table 3. Of the cetacean 
species that may be present, 6 are classified as low-frequency 
cetaceans (i.e., all mysticete species), 25 are classified as mid-
frequency cetaceans (i.e., all delphinid and ziphiid species and the 
sperm whale), and 3 are classified as high-frequency cetaceans (i.e., 
harbor porpoise and Kogia spp.).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.
    We note that the potential effects from NEFSC fisheries and 
ecosystem research (i.e., gear interaction and acoustic impacts) remain 
the same as those described in the Federal Register notices associated 
with the issuance of the NEFSC's current LOA. Effects to marine mammals 
are also described in NMFS' 2020 Draft Supplemental EA. We reiterate 
that information here and, where appropriate, we updated the 
information to reflect data contained within the NEFSC's annual 
monitoring reports received pursuant to the 2016-2021 LOA.

Ship Strike

    Vessel collisions with marine mammals, or ship strikes, can result 
in death or serious injury of the animal. Wounds resulting from ship 
strike may include massive trauma, hemorrhaging, broken bones, or 
propeller lacerations (Knowlton and Kraus, 2001). An animal at the 
surface may be struck directly by a vessel, a surfacing animal may hit 
the bottom of a vessel, or an animal just below the surface may be cut 
by a vessel's propeller. More superficial strikes may not kill or 
result in the death of the animal. These interactions are typically 
associated with large whales (e.g., fin whales), which are occasionally 
found draped across the bulbous bow of large commercial ships upon 
arrival in port. Although smaller cetaceans or pinnipeds are more 
maneuverable in relation to large vessels than are large whales, they 
may also be susceptible to strike. The severity of injuries typically 
depends on the size and speed of the vessel, with the probability of 
death or serious injury increasing as vessel speed increases (Knowlton 
and Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007; Conn 
and Silber, 2013). Impact forces increase with speed, as does the 
probability of a strike at a given distance (Silber et al., 2010; Gende 
et al., 2011).
    Pace and Silber (2005) found that the probability of death or 
serious injury increased rapidly with increasing vessel speed. 
Specifically, the predicted probability of serious injury or death 
increased from 45 to 75 percent as vessel speed increased from 10 to 14 
nautical mile per hour (kts), and exceeded ninety percent at 17 kts. 
Higher speeds during collisions result in greater force of impact, but 
higher speeds also appear to increase the chance of severe injuries or 
death through increased likelihood of collision by pulling whales 
toward the vessel (Clyne, 1999; Knowlton et al., 1995). In a separate 
study, Vanderlaan and Taggart (2007) analyzed the probability of lethal 
mortality of large whales at a given speed, showing that the greatest 
rate of change in the probability of a lethal injury to a large whale 
as a function of vessel speed occurs between 8.6 and 15 kt. The chances 
of a lethal injury decline from approximately eighty percent at 15 kts 
to approximately twenty percent at 8.6 kts. At speeds below 11.8 kts, 
the chances of lethal injury drop below fifty percent, while the 
probability asymptotically increases toward one hundred percent above 
15 kt.
    In an effort to reduce the number and severity of strikes of the 
endangered NARW, NMFS implemented speed restrictions in 2008 (73 FR 
60173; October 10, 2008). These restrictions require that vessels 
greater than or equal to 65 ft (19.8 m) in length travel at less than 
or equal to 10 kn near key port entrances and in certain areas of right 
whale aggregation along the U.S. eastern seaboard. Conn and Silber 
(2013) estimated that these restrictions reduced total ship strike 
mortality risk levels by eighty to ninety percent.
    For vessels used in NEFSC research activities, transit speeds 
average 10 kt (but vary from 6-14 kt), while vessel speed during active 
sampling is typically only 2 to 4 kt. At sampling speeds, both the 
possibility of striking a marine mammal and the possibility of a strike 
resulting in serious injury or mortality are discountable. At average 
transit speed, the probability of serious injury or mortality resulting 
from a strike, if one occurred, is less than fifty percent. However, 
the likelihood of a strike actually happening is again discountable. 
Ship strikes, as analyzed in the studies cited above, generally involve 
commercial shipping, which is much more common in both space and time 
than is research activity. Jensen and Silber (2004) summarized ship 
strikes of large whales worldwide from 1975-2003 and found that most 
collisions occurred in the open ocean and involved large vessels (e.g., 
commercial shipping). Commercial fishing vessels were responsible for 
three percent of recorded collisions,

[[Page 30098]]

while only one such incident (0.75 percent) was reported for a research 
vessel during that time period.
    It is possible for ship strikes to occur while traveling at slow 
speeds. For example, a NOAA-chartered survey vessel traveling at low 
speed (5.5 kt) while conducting multi-beam mapping surveys off the 
central California coast struck and killed a blue whale in 2009. The 
State of California determined that the whale had suddenly and 
unexpectedly surfaced beneath the hull, with the result that the 
propeller severed the whale's vertebrae, and that this was an 
unavoidable event. This strike represents the only such incident in 
approximately 540,000 hours of similar coastal mapping activity (p = 
1.9 x 10-\6\; 95% CI = 0-5.5 x 10-\6\; NMFS, 
2013). In addition, a non-NEFSC research vessel reported a fatal strike 
in 2011 of a dolphin in the Atlantic, demonstrating that it is possible 
for strikes involving smaller cetaceans or pinnipeds to occur. In that 
case, the incident report indicated that an animal apparently was 
struck by the vessel's propeller as it was intentionally swimming near 
the vessel. While indicative of the type of unusual events that cannot 
be ruled out, neither of these instances represents a circumstance that 
would be considered reasonably foreseeable or that would be considered 
preventable.
    In summary, we anticipate that vessel collisions involving NEFSC 
research vessels, while not impossible, represent unlikely, 
unpredictable events. NEFSC has not documented any ship strikes or 
near-misses in their monitoring reports pursuant to the current LOA. In 
addition, there are several preventive measures to minimize the risk of 
vessel collisions with right whales and other species of marine 
mammals. The compliance guide for the right whale ship strike reduction 
rule states that all vessels 19.8 m in overall length or greater must 
slow to speeds of 10 kts or less in seasonal management areas. 
Northeast U.S. Seasonal Management Areas include: Cape Cod Bay (1 Jan-
15 May), off Race Point (1 Mar-30 Apr) and GSC (1 Apr-31 July). Mid-
Atlantic Seasonal Management Areas include several port or bay 
entrances from 1 November to 30 April. When operating in these Seasonal 
Management Areas, Dynamic Management Areas, or in the vicinity of right 
whales or surface active groups of large baleen whales the vessel's 
speed will not exceed 10 kts. The purpose of this mandatory regulation 
is to reduce the likelihood of deaths and serious injuries to these 
endangered whales that result from collisions with a vessel (78 FR 
73726, December 9, 2013). Further, because vessels of all sizes can 
strike a whale, NEFSC research vessels will also reduce speed and 
change course in the vicinity of resting groups of large whales. When 
transiting between sampling stations, research vessels can travel at 
speeds of up to 14 knots. However, when NEFSC vessels are operating in 
right whale Seasonal Management Areas, Dynamic Management Areas, or at 
times and locations when whales are otherwise known to be present, they 
operate at speeds no greater than 10 knots.
    NEFSC research vessel captains and crew watch for marine mammals 
while underway during daylight hours and take necessary actions to 
avoid them. NEFSC surveys using large NOAA vessels (e.g., R/V Henry B. 
Bigelow) include one bridge crew dedicated to watching for obstacles at 
all times, including marine mammals. At any time during a survey or in 
transit, any bridge personnel that sights protected species that may 
intersect with the vessel course immediately communicates their 
presence to the helm for appropriate course alteration or speed 
reduction as possible to avoid incidental collisions, particularly with 
large whales (e.g., NARWs).
    Finally, the Right Whale Sighting Advisory System (RWSAS) is a NMFS 
program designed to reduce collisions between ships and the critically 
endangered NARW by alerting mariners to the presence of the right 
whales. All NOAA research vessels operating in NARW habitat participate 
in the RWSAS.
    No ship strikes have been reported from any fisheries research 
activities conducted or funded by the NEFSC in the Atlantic coast 
region. Given the relatively slow speeds of research vessels, the 
presence of bridge crew watching for obstacles at all times (including 
marine mammals), the presence of marine mammal observers on some 
surveys, and the small number of research cruises, we believe that the 
possibility of ship strike is discountable and, further, that were a 
strike of a large whale to occur, it would be unlikely to result in 
serious injury or mortality. No incidental take resulting from ship 
strike is anticipated, and this potential effect of research will not 
be discussed further in the following analysis.

Fishing Gear Interactions

    Marine mammals are known to regularly remove catch or bait (i.e., 
depredate) from commercial fisheries' lines or nets, and some species 
(primarily pinnipeds) take fish from mariculture pens. Depredation has 
been documented in over 30 species of marine mammals and from various 
types of gear (e.g., Read 2008; Reeves et al., 2013; Werner et al., 
2015). For example, some individuals in populations of sperm, killer, 
false killer, and pilot whales around the world have become adept at 
removing a variety of fish species from longline hooks, a behavior also 
exhibited by other toothed whales and dolphins in a wide range of 
fisheries. Other species have learned to take catch from trawl or gill 
nets (e.g., Kovaks et al., 2017).
    Marine mammals are widely regarded as being quite intelligent and 
inquisitive, and when their pursuit of prey coincides with human 
pursuit of the same resources, it should be expected that physical 
interaction with fishing gear may occur (e.g., Beverton, 1985). 
Fishermen and marine mammals are both drawn to areas of high prey 
density, and certain fishing activities may further attract marine 
mammals by providing food (e.g., bait, captured fish, bycatch discards) 
or by otherwise making it easier for animals to feed on a concentrated 
food source. Provision of foraging opportunities near the surface may 
present an advantage by negating the need for energetically expensive 
deep foraging dives (Hamer and Goldsworthy, 2006). Trawling, for 
example, can make available previously unexploited food resources by 
gathering prey that may otherwise be too fast or deep for normal 
predation, or may concentrate calories in an otherwise patchy landscape 
(Fertl and Leatherwood, 1997). Pilot whales, which are generally 
considered to be teuthophagous (i.e., feeding primarily on squid), were 
commonly observed in association with Atlantic mackerel (Scomber 
scombrus) trawl fisheries from 1977-88 in the northeast U.S. EEZ 
(Waring et al., 1990). Not surprisingly, stomach contents of captured 
whales were observed to have high proportions of mackerel (68 percent 
of non-trace food items), indicating that the ready availability of a 
novel, concentrated, high-calorie prey item resulted in changed dietary 
composition (Read, 1994).
    These interactions can result in injury or death for the animal(s) 
involved and/or damage to fishing gear. Coastal animals, including 
various pinnipeds, bottlenose dolphins, and harbor porpoises, are 
perhaps the most vulnerable to these interactions. They are most likely 
to interact with set or passive fishing gear such as gillnets, traps 
(Beverton, 1985; Barlow et al., 1994; Read et al., 2006; Byrd et al., 
2014; Lewison et al., 2014). Although interactions are less common for 
use of trawl nets and longlines, they do occur

[[Page 30099]]

with sufficient frequency to necessitate the establishment of required 
mitigation measures for multiple U.S. fisheries using both types of 
gear (NMFS, 2014). It is likely that no species of marine mammal can be 
definitively excluded from the potential for interaction with fishing 
gear (e.g., Northridge, 1984); however, the extent of interactions is 
likely dependent on the biology, ecology, and behavior of the species 
involved and the type, location, and nature of the fishery.
Trawl Nets
    As described previously, trawl nets are towed nets (i.e., active 
fishing) consisting of a cone-shaped net with a codend or bag for 
collecting the fish and can be designed to fish at the bottom, surface, 
or any other depth in the water column. Here we refer to bottom trawls 
and midwater trawls (i.e., any net not designed to tend the bottom 
while fishing). Trawl nets in general have the potential to capture or 
entangle marine mammals, which have been known to be caught in bottom 
trawls, presumably when feeding on fish caught therein, and in midwater 
trawls, which may or may not be coincident with their feeding 
(Northridge, 1984).
    Capture or entanglement may occur whenever marine mammals are 
swimming near the gear, intentionally (e.g., foraging) or 
unintentionally (e.g., migrating), and any animal captured in a net is 
at significant risk of drowning unless quickly freed. Animals can also 
be captured or entangled in netting or tow lines (also called lazy 
lines) other than the main body of the net; animals may become 
entangled around the head, body, flukes, pectoral fins, or dorsal fin. 
Interaction that does not result in the immediate death of the animal 
by drowning can cause injury (i.e., Level A harassment) or serious 
injury. Constricting lines wrapped around the animal can immobilize the 
animal or injure it by cutting into or through blubber, muscles and 
bone (i.e., penetrating injuries) or constricting blood flow to or 
severing appendages. Immobilization of the animal, if it does not 
result in immediate drowning, can cause internal injuries from 
prolonged stress and/or severe struggling and/or impede the animal's 
ability to feed (resulting in starvation or reduced fitness) (Andersen 
et al., 2008).
    Marine mammal interactions with trawl nets, through capture or 
entanglement, are well-documented. Dolphins are known to attend 
operating nets to either benefit from disturbance of the bottom or to 
prey on discards or fish within the net. For example, Leatherwood 
(1975) reported that the most frequently observed feeding pattern for 
bottlenose dolphins in the Gulf of Mexico involved herds following 
working shrimp trawlers, apparently feeding on organisms stirred up 
from the benthos. Bearzi and di Sciara (1997) opportunistically 
investigated working trawlers in the Adriatic Sea from 1990-94 and 
found that ten percent were accompanied by foraging bottlenose 
dolphins. However, midwater trawls have greater potential to capture 
cetaceans, because the nets may be towed at faster speeds, these trawls 
are more likely to target species that are important prey for marine 
mammals (e.g., squid, mackerel), and the likelihood of working in 
deeper waters means that a more diverse assemblage of species could 
potentially be present (Hall et al., 2000).
    Globally, at least seventeen cetacean species are known to feed in 
association with trawlers and individuals of at least 25 species are 
documented to have been killed by trawl nets, including several large 
whales, porpoises, and a variety of delphinids (Karpouzli and Leaper, 
2004; Hall et al., 2000; Fertl and Leatherwood, 1997; Northridge, 
1991). At least eighteen species of seals and sea lions are known to 
have been killed in trawl nets (Wickens, 1995). Generally, direct 
interaction between trawl nets and marine mammals (both cetaceans and 
pinnipeds) has been recorded wherever trawling and animals co-occur. 
Tables 8, 9, and 10 (later in this document) display more recent 
information regarding interactions specifically in U.S. fisheries and 
are more relevant to the development of take estimates for this 
proposed rule. In evaluating risk relative to a specific fishery (or 
comparable research survey), one must consider the size of the net as 
well as frequency, timing, and location of deployment. These 
considerations inform determinations of whether interaction with marine 
mammals is likely. For example, in most cases, research gear employs 
smaller nets and shorter longlines than commercial gear. Similarly, net 
soak times for research are often shorter than commercial fisheries 
and, in many cases, are monitored.
    Longlines--Longlines are basically strings of baited hooks that are 
either anchored to the bottom, for targeting groundfish, or are free-
floating, for targeting pelagic species and represent a passive fishing 
technique. Pelagic longlines, which notionally fish near the surface 
with the use of floats, may be deployed in such a way as to fish at 
different depths in the water column. For example, deep-set longlines 
targeting tuna may have a target depth of 400 m, while a shallow-set 
longline targeting swordfish is set at 30-90 m depth. We refer here to 
bottom and pelagic longlines. Any longline generally consists of a 
mainline from which leader lines (gangions) with baited hooks branch 
off at a specified interval, and is left to passively fish, or soak, 
for a set period of time before the vessel returns to retrieve the 
gear. Longlines are marked by two or more floats that act as visual 
markers and may also carry radio beacons; aids to detection are of 
particular importance for pelagic longlines, which may drift a 
significant distance from the deployment location. Pelagic longlines 
are generally composed of various diameter monofilament line and are 
generally much longer, and with more hooks, than are bottom longlines. 
Bottom longlines may be of monofilament or multifilament natural or 
synthetic lines.
    Marine mammals may be hooked or entangled in longline gear, with 
interactions potentially resulting in death due to drowning, 
strangulation, severing of carotid arteries or the esophagus, 
infection, an inability to evade predators, or starvation due to an 
inability to catch prey (Hofmeyr et al., 2002), although it is more 
likely that animals will survive being hooked if they are able to reach 
the surface to breathe. Injuries, which may include serious injury, 
include lacerations and puncture wounds. Animals may attempt to 
depredate either bait or catch, with subsequent hooking, or may become 
accidentally entangled. As described for trawls, entanglement can lead 
to constricting lines wrapped around the animals and/or immobilization, 
and even if entangling materials are removed the wounds caused may 
continue to weaken the animal or allow further infection (Hofmeyr et 
al., 2002). Large whales may become entangled in a longline and then 
break free with a portion of gear trailing, resulting in alteration of 
swimming energetics due to drag and ultimate loss of fitness and 
potential mortality (Andersen et al., 2008). Weight of the gear can 
cause entangling lines to further constrict and further injure the 
animal. Hooking injuries and ingested gear are most common in small 
cetaceans and pinnipeds but have been observed in large cetaceans 
(e.g., sperm whales). The severity of the injury depends on the 
species, whether ingested gear includes hooks, whether the gear works 
its way into the gastrointestinal (GI) tract, whether the gear 
penetrates the GI lining, and the location of the hooking (e.g., 
embedded in the animal's stomach

[[Page 30100]]

or other internal body parts) (Andersen et al., 2008). Bottom longlines 
pose less of a threat to marine mammals due to their deployment on the 
ocean bottom, but can still result in entanglement in buoy lines or 
hooking as the line is either deployed or retrieved. The rate of 
interaction between longline fisheries and marine mammals depends on 
the degree of overlap between longline effort and species distribution, 
hook style and size, type of bait and target catch, and fishing 
practices (such as setting/hauling during the day or at night).
    The NEFSC plans to use pelagic and bottom longline gear in four 
programs: The Apex Predators Bottom Longline Coastal Shark, Apex 
Predators Pelagic Nursery Grounds Shark, Apex Predator Pelagic Longline 
Shark, and Cooperative Atlantic States Shark Pupping and Nursery 
(COASTSPAN) Longline surveys. The NEFSC has no recorded marine mammal 
interactions during the conduct of its pelagic and bottom longline 
surveys in the Atlantic coast region. While the NEFSC has not 
historically interacted with large whales or other cetaceans in its 
longline gear, documentation exists that some of these species are 
taken in commercial longline fisheries. NEFSC uses a shorter mainline 
length and lower number of hooks relative to that of commercial 
fisheries.
    Gillnets--Marine mammal interactions with gillnets, through 
entanglement, are well-documented (Reeves et al., 2013). At least 75 
percent of odontocete species, 64 percent of mysticetes, 66 percent of 
pinnipeds, all sirenians, and marine mustelids have been recorded as 
gillnet bycatch over the past 20-plus years (Reeves et al., 2013). 
Reeves et al. (2013) note that numbers of marine mammals killed in 
gillnets tend to be greatest for species that are widely distributed in 
coastal and shelf waters. Common dolphins and striped dolphins, for 
example, have continued to be taken in large numbers globally despite 
the fact that large-scale driftnet fishing on the high seas has been 
illegal since 1993, eliminating one source of very large bycatches of 
northern right whale dolphins and common dolphins (Reeves et al., 
2013).
    Minke whales are probably especially vulnerable to gillnet 
entanglement for several reasons, including their near-shore and shelf 
occurrence, their proclivity for preying on fish species that are also 
targeted by net fisheries, and their small size and consequently 
greater difficulty (compared to the larger mysticetes) of extricating 
themselves once caught (Reeves et al., 2013).
    Entanglement in fishing gear and bycatch in commercial fisheries 
occur with regularity in the Northeast and Mid-Atlantic regions and are 
the primary known causes of mortality and serious injury for pinnipeds 
in these areas. Gillnets are responsible for most observed and reported 
bycatch for marine mammals (Lewison et al., 2014; Zollett, 2009). From 
2013-2017, the total human caused mortality and serious injury to 
harbor seals is estimated to be 350 per year (338 from fisheries and 12 
from non-fishery-related interaction stranding mortalities) (Hayes, 
Josephson et al. 2020). The average annual estimated human-caused 
mortality and serious injury to gray seals in the U.S. and Canada was 
5,410 per year for the period 2013-2017 (946 U.S./4,464 Canada). This 
average is based on: 940 from U.S. observed fisheries; 5.6 from non-
fishery human interaction stranding and shooting mortalities in the 
U.S.; 0.8 from U.S. research mortalities; 672 Canadian commercial 
harvest; 55 from the DFO scientific collections; and 3,737 removals of 
nuisance animals in Canada (DFO 2017, Mike Hammill pers. comm; as cited 
in Hayes, Josephson et al. 2020).

Fyke Nets

    Fyke nets are bag-shaped nets which are held open by frames or 
hoops. The fyke nets used in NEFSC survey activities are constructed of 
successively smaller plastic coated square metal tube frames that are 
covered with mesh net (0.6 centimeters for small, 1.9 centimeters for 
large). Each net has two throats tapering to a semi-rigid opening. The 
final compartment of the net is configured with a rigid framed live box 
(2 x 2 x 3 meters) at the surface for removal of catch directly from 
above without having to retrieve the entire net. Fyke nets are normally 
set inshore by small boat crews. It is unknown whether fyke nets have 
been responsible for marine mammal mortality or serious injury (NMFS 
2021).
    In commercial fisheries, fyke nets fall into Category III on the 
List of Fisheries. Although bycatch is well known and well studied in 
marine fisheries, there are few studies on bycatch in freshwater 
fisheries using fyke nets (Larocque et al., 2011). Fyke nets are 
passive fishing gear that have limited species selectivity and are set 
for long durations (Hubert, 1996; Larocque et al., 2011). Thus, this 
gear has the potential to capture non-targeted fauna that use the same 
habitat as targeted species, even without the use of bait (Larocque et 
al., 2011). Mortality in fyke nets can arise from stress and injury 
associated with anoxia, abrasion, confinement, and starvation (Larocque 
et al., 2011); however, it is unknown whether fyke nets have been 
responsible for marine mammal mortality or serious injury (NMFS 2021).
    Other Research Gear--All other gears used in NEFSC fisheries 
research (e.g., a variety of plankton nets, CTDs, ROVs) do not have the 
expected potential for marine mammal interactions, and are not known to 
have been involved in any marine mammal interaction. Specifically, 
these include CTDs, XBTs, CUFES, ROVs, small trawls (Oozeki, IKMT, 
MOCNESS, and Tucker trawls), plankton nets (Bongo, Pairovet, and Manta 
nets), and vertically deployed or towed imaging systems to be no-impact 
gear types.
    Unlike trawl nets and longline gear, which are used in both 
scientific research and commercial fishing applications, these other 
gears are not considered similar or analogous to any commercial fishing 
gear and are not designed to capture any commercially-salable species, 
or to collect any sort of sample in large quantities. They are not 
considered to have the potential to take marine mammals primarily 
because of their design and how they are deployed. For example, CTDs 
are typically deployed in a vertical cast on a cable and have no loose 
lines or other entanglement hazards. A Bongo net is typically deployed 
on a cable, whereas neuston nets (these may be plankton nets or small 
trawls) are often deployed in the upper one meter of the water column; 
either net type has very small size (e.g., two bongo nets of 0.5 m\2\ 
each or a neuston net of approximately 2 m\2\) and no trailing lines to 
present an entanglement risk. These other gear types are not considered 
further in this document.

NEFSC Gear Interactions

    From 2004 through 2015, NEFSC documented ten individual marine 
mammals that were killed from interactions with NEFSC's gear: Six were 
killed due to capture in gillnets, a harbor seal suffered mortality in 
fyke nets, and one minke whale was caught in trawl gear and released 
alive. No interactions with NEFSC survey gear were observed in 2016, 
2017 or 2018.
    On September 24, 2019, during a Cooperative Research NTAP cruise 
sponsored by the NEFSC, a small common dolphin (Length = 231 cm approx. 
150 lbs) was found dead from entanglement in fishing gear upon 
inspection of the catch. The gear was a 4 seam 3 bridle Bigelow trawl 
net with a spread restrictor cable. The take occurred during reduced 
visibility (at night/early morning conditions), so visually scanning 
for marine mammals

[[Page 30101]]

was difficult. Deployment of the net took place within fifteen minutes 
of arrival on station during which time no marine mammals were present 
or sighted during the approach or at the sampling site. Vessel 
personnel maintained watch for marine mammals during trawling 
operations. None were sighted, so the station was completed. The tows 
were short in duration (20 minutes) and the vessel maintained a 
consistent tow speed of 3 knots. During fishing, there was no 
indication there was a marine mammal in the net nor were any marine 
mammals observed. Upon completion of the trawl, the nets (twin trawl) 
were recovered and each catch was dumped immediately into a checker. It 
was at this time, the marine mammal was detected (fresh dead). No other 
marine mammals were observed in the net or in the water. More details 
on this interaction can be found the NEFSC 2019 Annual Monitoring 
available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research. In 
2020, no interactions with marine mammals occurred.

Acoustic Effects

    Detailed descriptions of the potential effects of NEFSC's use of 
acoustic sources are provided in other Federal Register notice for the 
original incidental take regulations issued to the NEFSC (80 FR 39542; 
January 9, 2015) and, more recently, other NMFS Science Centers (e.g., 
the ``Acoustic Effects'' section of the proposed rule for the taking of 
marine mammals incidental to NMFS Alaska Fisheries Science Center 
fisheries research (83 FR 37660; August 1, 2018), and the ``Potential 
Effects of Underwater Sound'' section of the proposed rule for the 
taking of marine mammals incidental to NMFS Southeast Fisheries Science 
Center research (84 FR 6603; February 27, 2019). No significant new 
information is available, and those discussions provide the necessary 
adequate and relevant information regarding the potential effects of 
NEFSC's specified activity on marine mammals and their habitat. 
Therefore, we refer the reader to those documents rather than repeating 
the information here.
    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. With specific 
reference to Level B harassment that may occur as a result of acoustic 
exposure, we note that the analytical methods described in the 
incidental take regulations for other NMFS Science Centers 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 
NEFSC has advanced in recent 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 analytical approach described in the 
incidental take regulations for other NMFS Science Centers 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 (see 
``Estimated Take'' section of this notice). In summary, while we 
propose to authorize the amount of take by Level B harassment indicated 
in the ``Estimated Take'' section, and consider these potential takings 
at face value in our negligible impact analysis, it is uncertain 
whether use of these acoustic systems are likely to cause take at all, 
much less at the estimated levels.

Potential Effects of Visual Disturbance

    The NEFSC anticipates that some trawl and fyke net surveys may 
disturb a small number of pinnipeds during the conduct of these 
activities in upper Penobscot Bay above Fort Point Ledge, ME. 
Specifically, two surveys have the potential to harass pinnipeds from 
visual disturbance: The Penobscot Estuarine Fish Community and 
Ecosystem Survey (trawls) and the Marine Estuaries Diadromous Survey 
(fyke nets). Pinnipeds are expected to be hauled out on tidal ledges 
and at times may experience incidental close approaches by the survey 
vessel and/or researchers during the course of its fisheries research 
activities. The NEFSC expects that some of these animals will exhibit a 
behavioral response to the visual stimuli (e.g., including alert 
behavior, movement, vocalizing, or flushing). NMFS does not consider 
the lesser reactions (e.g., alert behavior) to constitute harassment. 
These events are expected to be infrequent and cause only a temporary 
disturbance on the order of minutes.
    In areas where disturbance of haulouts due to periodic human 
activity (e.g., researchers approaching on foot, passage of small 
vessels, maintenance activity) occurs, monitoring results have 
generally indicated that pinnipeds typically move or flush from the 
haulout in response to human presence or visual disturbance, although 
some individuals typically remain hauled out (e.g., SCWA, 2012). The 
nature of response is generally dependent on species. For example, 
California sea lions and northern elephant seals have been observed as 
less sensitive to stimulus than harbor seals during monitoring at 
numerous sites. Monitoring of pinniped disturbance as a result of 
abalone research in the Channel Islands showed that while harbor seals 
flushed at a rate of 69 percent, California sea lions flushed at a rate 
of only 21 percent. The rate for elephant seals declined to 0.1 percent 
(VanBlaricom, 2010).
    Upon the occurrence of low-severity disturbance (i.e., the approach 
of a vessel or person as opposed to an explosion or sonic boom), 
pinnipeds typically exhibit a continuum of responses, beginning with 
alert movements (e.g., raising the head), which may then escalate to 
movement away from the stimulus and possible flushing into the water. 
Flushed pinnipeds typically re-occupy the haulout within minutes to 
hours of the stimulus.
    In a popular tourism area of the Pacific Northwest where human 
disturbances occurred frequently, past studies observed stable 
populations of seals over a twenty-year period (Calambokidis et al., 
1991). Despite high levels of seasonal disturbance by tourists using 
both motorized and non-motorized vessels, Calambokidis et al. (1991) 
observed an increase in site use (pup rearing) and classified this area 
as one of the most important pupping sites for seals in the region. 
Another study observed an increase in seal vigilance when vessels 
passed the haulout site, but then vigilance relaxed within ten minutes 
of the vessels' passing (Fox, 2008). If vessels passed frequently 
within a short time period (e.g., 24 hours), a reduction in the total 
number of seals present was also observed (Fox, 2008).
    Level A harassment, serious injury, or mortality could likely only 
occur as a result of trampling in a stampede (a potentially dangerous 
occurrence in which large numbers of animals succumb to mass panic and 
rush away from a stimulus) or abandonment of pups. However, given the 
nature of

[[Page 30102]]

potential disturbance--which would entail the gradual and highly 
visible approach of a small vessel and small research crew--we would 
expect that pinnipeds would exhibit a gradual response escalation, and 
that stampeding or abandonment of pups would likely not be an issue. 
Further, neither survey with potential for harassment from visual 
disturbance overlaps with the gray seal pupping period.
    Disturbance of pinnipeds caused by NEFSC survey activities--which 
are sparsely distributed in space and time--would be expected to last 
for only short periods of time, separated by significant amounts of 
time in which no disturbance occurred. The Penobscot Estuarine Fish 
Community and Ecosystem Survey uses shrimp trawls and occurs over 12 
days per year split between spring, summer and fall seasons. The Marine 
Estuaries Diadromous Survey uses fyke nets and takes place over 100 
days from April to November. Because such disturbance is sporadic, 
rather than chronic, and of low intensity, individual marine mammals 
are unlikely to incur any detrimental impacts to vital rates or ability 
to forage and, thus, loss of fitness. Correspondingly, even local 
populations, much less the overall stocks of animals, are extremely 
unlikely to accrue any significantly detrimental impacts.

Anticipated Effects on Marine Mammal Habitat

    Effects to Prey--In addition to direct, or operational, 
interactions between fishing gear and marine mammals, indirect (i.e., 
biological or ecological) interactions occur as well, in which marine 
mammals and fisheries both utilize the same resource, potentially 
resulting in competition that may be mutually disadvantageous (e.g., 
Northridge, 1984; Beddington et al., 1985; Wickens, 1995). Marine 
mammal prey varies by species, season, and location and, for some 
marine mammals, is not well documented. NEFSC fisheries research 
removals of species commonly utilized by marine mammals are relatively 
low. Prey of sei whales and blue whales are primarily zooplankton, 
which are targeted by NEFSC fisheries research with collection only on 
the order of liters, so the likelihood of research activities changing 
prey availability is low and impact negligible to none. Prey species 
biomass removed during NEFSC surveys is very small relative to their 
overall biomass in the area and is a very small percentage of the 
Allowable Biological Catch (ABC). For example, NEFSC fisheries research 
activities may affect sperm whale prey (squid), but this is expected to 
be minor due to the insignificant amount of squid removed through 
fisheries research (i.e., 4 tons in 2017). However, here the removal by 
NEFSC fisheries research, regardless of season and location is minor 
relative to that taken through commercial fisheries. For example, 
commercial fisheries catches for most pelagic species typically range 
from the hundreds to thousands of metric tons, whereas the catch in 
similar fisheries research activities would only occasionally range as 
high as hundreds to thousands of pounds in any particular year (see 
Table 9-1 of the NEFSC Application for more information on fish catch 
during research surveys and commercial harvest). In addition to the 
small amount of biomass removed, the size classes of fish targeted in 
research surveys are juvenile individuals, some of which are only 
centimeters long; these small size classes are not known to be prey of 
marine mammals.
    Research catches are also distributed over a wide area because of 
the random sampling design covering large sample areas. Fish removals 
by research are therefore highly localized and unlikely to affect the 
spatial concentrations and availability of prey for any marine mammal 
species. The overall effect of research catches on marine mammals 
through competition for prey may therefore be considered insignificant 
for all species.
    Physical Habitat--NEFSC conducts some bottom trawling, which may 
physically damage seafloor habitat. In addition, NEFSC fishery research 
activities use bottom contact fishing gear, including otter trawls, sea 
scallop dredges, and hydraulic surfclam dredges. Other fishing gear 
that contacts the seafloor, such as pots and traps, can cause physical 
damage but the impacts are localized and minimal as this type of gear 
is fixed in position. The ropeless lobster traps planned for ongoing 
use would have minimal effect of seafloor habitat. Physical damage may 
include furrowing and smoothing of the seafloor as well as the 
displacement of rocks and boulders, and such damage can increase with 
multiple contacts in the same area (Schwinghamer et al., 1998; Kaiser 
et al., 2002; Malik and Mayer, 2007; NRC, 2002). The effects of bottom 
contact gear differ in each type of benthic environment. In sandy 
habitats with strong currents, the furrows created by mobile bottom 
contact gear quickly begin to erode because lighter weight sand at the 
edges of furrows can be easily moved by water back towards the center 
of the furrow (NRC, 2002). Duration of effects in these environments 
therefore tend to be very short because the terrain and associated 
organisms are accustomed to natural disturbance. By contrast, the 
physical features of more stable hard bottom habitats are less 
susceptible to disturbance, but once damaged or removed by fishing 
gear, the organisms that grow on gravel, cobbles, and boulders can take 
years to recover, especially in deeper water where there is less 
natural disturbance (NRC, 2002). However, the area of benthic habitat 
affected by NEFSC research each year would be a very small fraction of 
total area of benthic habitat in the research areas.
    Damage to seafloor habitat may also harm infauna and epifauna 
(i.e., animals that live in or on the seafloor or on structures on the 
seafloor), including corals (Schwinghamer et al., 1998; Collie et al., 
2000; Stevenson et al., 2004). In general, recovery from biological 
damage varies based on the type of fishing gear used, the type of 
seafloor surface (i.e., mud, sand, gravel, mixed substrate), and the 
level of repeated disturbances. Recovery timelines of 1-18 months are 
expected. However, repeated disturbance of an area can prolong the 
recovery time (Stevenson et al., 2004), and recovery of corals may take 
significantly longer than 18 months.
    Organisms such as cold water corals create structure on the 
seafloor that not only contain a high diversity of corals but also 
provide an important habitat for other infauna (Stevenson, Chiarella et 
al. 2004). Cold water corals are generally slow growing, fragile and 
long lived that makes them particularly vulnerable to damage. Fishing 
gear that contacts coral can break or disrupt corals reducing 
structural complexity and reducing species diversity of the corals and 
other animals that utilize this habitat (Freiwald, Fossa et al. 2004). 
The extent of overlap between cold water corals and NEFSC survey 
vessels is expected to be limited given the small number and small 
areal extent of NEFSC surveys and funded fishery research using bottom 
trawl and dredging equipment. In addition, only two surveys occur 
outside of the LME, the Deepwater Biodiversity Survey and the Deep-sea 
Corals Survey. Neither of these surveys use bottom contacting gear. 
Although fisheries research effects on corals may be long-term, the 
magnitude of this potential effect is negligible.
    Fishing gear that contacts the seafloor can increase the turbidity 
of the water by suspending fine sediments and benthic algae. Suspension 
of fine sediments and turnover of sediment can

[[Page 30103]]

also alter the geochemistry of the seafloor and the water column, but 
impacts of alteration of turbidity and geochemistry in the water column 
are not very well understood (Stevenson, Chiarella et al. 2004). These 
types of effects from fisheries research activities would be periodic, 
temporary, and localized and are considered negligible.
    As described in the preceding, the potential for NEFSC research to 
affect the availability of prey to marine mammals or to meaningfully 
impact the quality of physical or acoustic habitat is considered to be 
insignificant for all species. Effects to marine mammal habitat will 
not be discussed further in this document.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' 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 NEFSC research activities 
could occur as a result of (1) injury or mortality due to gear 
interaction (Level A harassment, serious injury, or mortality); (2) 
behavioral disturbance resulting from the use of active acoustic 
sources (Level B harassment only); or (3) behavioral disturbance of 
pinnipeds resulting from incidental approach of researchers and 
research vessels (Level B harassment only). Below we describe how the 
potential take is estimated.

Estimated Take Due to Gear Interaction

    To estimate the number of potential takes that could occur by M/SI 
and Level A through gear interaction, consideration of past 
interactions between gear (i.e., trawl, gillnet, and fyke gear) used by 
NEFSC and specific marine mammal species provides important context. We 
also considered other species that have not been taken by NEFSC but are 
similar enough in nature and behavioral patterns as to consider them 
having the potential to be entangled. As described in the ``Potential 
Effects of Marine Mammals and their Habitat'' section, NEFSC has a 
history of taking marine mammals in fishing gear, albeit a very small 
amount compared to the amount of fishing effort. From 2004-2015, eight 
marine mammals were killed in interactions with trawl gear (common 
dolphin, gray seal), six were killed due to capture in gillnets (Common 
bottlenose, Northern South Carolina estuarine stock, gray seal, harbor 
porpoise and bottlenose dolphin), and one suffered mortality in a fyke 
net (harbor seal). Also over that time period, one minke whale was 
caught in trawl gear and released alive. We note these interactions 
occurred prior to implementation of the existing regulations which 
heightened mitigation and monitoring efforts. From 2016-2018, no marine 
mammals were taken incidental to fishing. A lethal take of a common 
dolphin during a Cooperative Research NTAP cruise sponsored by the 
Center occurred in late September 2019. The gear was a 4 seam 3 bridle 
Bigelow net with a spread restrictor cable. In 2020, no takes occurred.
    Historical Interactions--In order to estimate the number of 
potential incidents of take that could occur by M/SI through gear 
interaction, we first consider the NEFSC's past record of such 
incidents, and then consider in addition other species that may have 
similar vulnerabilities to the NEFSC's trawl, gillnet, and fyke net 
gear for which we have historical interaction records. We describe 
historical interactions with NEFSC research gear in Tables 6, 7, and 8. 
Available records are for the years 2004 through the present. Please 
see Figure 4.2-2 in the NEFSC EA for specific locations of these 
incidents up through 2020.

                                Table 6--Historical Interactions With Trawl Gear
----------------------------------------------------------------------------------------------------------------
                                                                                              Number
             Gear                   Survey           Date           Species        Number    released    Total
                                                                                   killed     alive
----------------------------------------------------------------------------------------------------------------
Gourock high speed midwater    Atlantic              10/8/2004  Short-beaked             2          0          2
 rope trawl.                    Herring Survey.                  common dolphin
                                                                 (Western NA
                                                                 stock).
Bottom trawl (4-seam, 3        NEFSC Standard       11/11/2007  Short-beaked             1          0          1
 bridle).                       Bottom Trawl                     common dolphin
                                Survey.                          (Western NA
                                                                 stock).
Gourock high speed midwater    Atlantic             10/11/2009  Minke whale....          0      \1\ 1          1
 rope trawl.                    Herring Survey.
Bottom trawl (4-seam, 3        Spring Bottom            4/4/15  Gray seal......      \2\ 1          0          1
 bridle).                       Trawl Survey.
Bottom trawl (4-seam, 3        Cooperative             9/24/19  Short-beaked             1          0          1
 bridle).                       NTAP.                            common dolphin
                                                                 (Western NA
                                                                 stock).
----------------------------------------------------------------------------------------------------------------
    Total individuals captured (total number of interactions    Short-beaked             4          0          4
     given in parentheses).                                      common dolphin
                                                                 (4).
                                                                Minke whale (1)          0          1          1
                                                                Gray seal (1)..          1          0          1
----------------------------------------------------------------------------------------------------------------
\1\ According to the incident report, ``The net's cod end and whale were brought aboard just enough to undo the
  cod end and free the whale. It was on deck for about five minutes. While on deck, it was vocalizing and moving
  its tail up and down. The whale swam away upon release and appeared to be fine. Estimated length was 19
  feet.'' The NEFSC later classified this incidental take as a serious injury using NMFS criteria for such
  determinations published in January 2012 (Cole and Henry, 2013).
\2\ The NEFSC filed an incident report for this incidental take on April 4, 2015.


[[Page 30104]]


                               Table 7--Historical Interactions With Gillnet Gear
----------------------------------------------------------------------------------------------------------------
                                                                                              Number
             Gear                   Survey           Date           Species        Number    released    Total
                                                                                   killed     alive
----------------------------------------------------------------------------------------------------------------
Gillnet......................  COASTSPAN......      11/29/2008  Common                   1          0          1
                                                                 Bottlenose
                                                                 dolphin
                                                                 (Northern
                                                                 South Carolina
                                                                 Estuarine
                                                                 System stock)
                                                                 \1\.
Gillnet......................  NEFOP Observer         5/4/2009  Gray seal......          1          0          1
                                Gillnet
                                Training Trips.
Gillnet......................  NEFOP Observer         5/4/2009  Harbor porpoise          1          0          1
                                Gillnet
                                Training Trips.
----------------------------------------------------------------------------------------------------------------
    Total individuals captured (total number of interactions    Bottlenose               1          0          1
     given in parentheses).                                      dolphin (1).
                                                                Gray seal (1)..          1          0          1
                                                                Harbor porpoise          1          0          1
                                                                 (1).
----------------------------------------------------------------------------------------------------------------
\1\ In 2008, the COASTSPAN gillnet survey caught and killed one common bottlenose dolphin in 2008 while a
  cooperating institution was conducting the survey in South Carolina. This was the only occurrence of
  incidental take in these surveys. Although no genetic information is available from this dolphin, based on the
  location of the event, NMFS retrospectively assigned this mortality to the Northern South Carolina Estuarine
  System stock in 2015 from the previous classification as the western North Atlantic stock (Waring et al.,
  2014).


                               Table 8--Historical Interactions With Fyke Net Gear
----------------------------------------------------------------------------------------------------------------
                                                                                              Number
             Gear                   Survey           Date           Species        Number    released    Total
                                                                                   killed     alive
----------------------------------------------------------------------------------------------------------------
Fyke Net.....................  Maine Estuaries      10/25/2010  Harbor seal....          1          0          1
                                Diadromous
                                Survey.
----------------------------------------------------------------------------------------------------------------
    Total.....................................................  1..............          0          1
----------------------------------------------------------------------------------------------------------------

    The NEFSC has no recorded interactions with any gear other than 
midwater and bottom trawl, gillnet, and fyke net gears. As noted 
previously in ``Potential Effects of the Specified Activity on Marine 
Mammals,'' we anticipate future interactions with the same gear types.
    In order to use these historical interaction records in a 
precautionary manner as the basis for the take estimation process, and 
because we have no specific information to indicate whether any given 
future interaction might result in M/SI versus Level A harassment, we 
conservatively assume that all interactions equate to mortality.
    In order to estimate the potential number of incidents of M/SI take 
that could occur incidental to the NEFSC's use of midwater and bottom 
trawl, gillnet, fyke net, and longline gear in the Atlantic coast 
region over the five-year period the rule would be effective (2021-
2026), we first look at the six species described that have been taken 
historically and then evaluate the potential vulnerability of 
additional species to these gears.
    Table 9 shows the average annual captures rate of these six species 
and the projected five-year totals for this proposed rule, for trawl, 
gillnet, and fyke net gear. Below we describe how these data were used 
to estimate future take for these and proxy species which also have the 
potential to be taken.

     Table 9--Average Rate of Animal Gear Interaction From 2004-2020
------------------------------------------------------------------------
                                                           Average rate
              Gear                       Species             per year
                                                            (2004-2020)
------------------------------------------------------------------------
Trawl..........................  Short-beaked common                0.27
                                  dolphin.
                                 Minke whale............            0.06
                                 Gray seal..............            0.06
Gillnet........................  Common bottlenose                  0.06
                                  dolphin.
                                 Harbor porpoise........            0.06
                                 Gray seal..............            0.06
Fyke net.......................  Harbor seal............            0.06
------------------------------------------------------------------------

    The NEFSC only estimated takes for NEFSC gear that: (1) Had a prior 
take in the historical record, or (2) by analogy to commercial fishing 
gear. Further, given the rare events of M/SI in NEFSC fishery research, 
the NEFSC binned gear into categories (e.g., trawls) rather than 
partitioning take by gear, as it would result in estimated takes that 
far exceed the recorded take history.
    Vulnerability of analogous species to different gear types is 
informed by the record of interactions by the analogous and reference 
species with commercial fisheries using gear types similar to those 
used in research. Furthermore, when determining the amount of take 
requested, we make a distinction between analogous species thought to 
have the same vulnerability for incidental take as the reference 
species and those analogous species that may have a similar 
vulnerability. In those cases thought to have the same

[[Page 30105]]

vulnerability, the request is for the same number per year as the 
reference species. In those cases thought to have similar 
vulnerability, the request is less than the reference species. For 
example, the NEFSC believes the vulnerability of harbor seals to be 
taken in gillnets is the same as for gray seals (one per year) and thus 
requests one harbor seal per year (total of 5 over the authorization 
period). Alternatively, the potential for take of Atlantic white-sided 
dolphins in gillnets is expected to be similar to harbor porpoise (one 
per year), and the reduced request relative to this reference species 
is one Atlantic white sided dolphin over the entire five-year 
authorization period.
    The approach outlined here reflects: (1) Concern that some species 
with which we have not had historical interactions may interact with 
these gears, (2) acknowledgment of variation between sets, and (3) 
understanding that many marine mammals are not solitary so if a set 
results in take, the take could be greater than one animal. In these 
particular instances, the NEFSC estimates the take of these species to 
be equal to the maximum interactions per any given set of a reference 
species historically taken during 2004-2019.
    Trawls--To estimate the requested taking of analogous species, the 
NEFSC identified several species in the western North Atlantic Ocean 
which may have similar vulnerability to research-based trawls as the 
short-beaked common dolphin. Short-beaked common dolphins were taken in 
2004 (two individuals in one trawl set) and in 2019 (one dolphin during 
a bottom trawl). The NEFSC therefore estimates one take of a short-
beaked common dolphin per year over the 5-year period to be 
precautionary (i.e., five total). On the basis of similar vulnerability 
of other dolphin species, the NEFSC estimates two potential takes over 
the five-year authorization period for each of the following species in 
trawls: Risso's dolphin, common bottlenose dolphin (offshore and 
northern coastal migratory stock), Atlantic-white-sided dolphin, white-
beaked dolphin, Atlantic spotted dolphin, and harbor porpoise. For 
these species, we propose to authorize a total taking by M/SI of two 
individuals over the five-year timespan (Table 10).
    In light of the low level of interaction and the mitigation 
measures to specifically reduce interactions with dolphins during 
COASTSPAN surveys such as hand-checking the gill net every 20 minutes, 
no takes are requested from the Southern Migratory, Coastal or 
Estuarine stocks of common bottlenose dolphin. Other dolphin species 
may have similar vulnerabilities as those listed above but because of 
the timing and location of NEFSC research activities, the NEFSC 
concluded that the likelihood for take of these species was low and 
therefore is not requesting, nor it NMFS proposing to authorize, take 
for the following species: Pantropical spotted dolphin, striped 
dolphin, Fraser's dolphin, rough-toothed dolphin, Clymene dolphin, and 
spinner dolphin.
    In 2015, one gray seal was killed during a trawl survey. Similar to 
other gear, the NEFSC believes that harbor seals have a similar 
vulnerability for incidental take as gray seals in this type of gear. 
To be conservative, for the period of this authorization, the NEFSC has 
requested one take by trawl for harbor seals each year over the five-
year authorization period. Thus, for harbor and gray seals, we propose 
to authorize a total taking by M/SI of five individuals over the five-
year timespan for trawl gear (Table 10).
    Gillnets--To estimate the requested take of analogous species for 
gillnets, the NEFSC identified several species in the western North 
Atlantic Ocean which may have similar vulnerability to research-based 
gillnet surveys as the short-beaked common dolphin--due to similar 
behaviors and distributions in the survey areas.
    Gillnet surveys typically occur nearshore in bays and estuaries. 
One gray seal and one harbor porpoise were caught during a Northeast 
Fisheries Observer Program training gillnet survey. The NEFSC believes 
that harbor seals have the same vulnerability to be taken in gillnets 
as gray seals and therefore estimates five takes of harbor seals in 
gillnets over the five-year authorization period. For this species, we 
propose to authorize a total taking by M/SI of five individuals over 
the five-year timespan (see Table 10).
    Likewise, the NEFSC believes that Atlantic white-sided dolphins and 
short-beaked common dolphins have a similar vulnerability to be taken 
in gillnets as harbor porpoise and bottlenose dolphins (Waring et al., 
2014) and estimates one take each of Atlantic white-sided dolphin and 
short-beaked common dolphin in gillnet gear over the five-year 
authorization period. For these species, we propose to authorize a 
total taking by M/SI of one individual (per species) over the five-year 
timespan (Table 10).
    In 2008, a cooperating institution conducting the COASTSPAN gillnet 
survey in South Carolina caught and killed one bottlenose dolphin. 
Despite years of effort since that time, this was the only occurrence 
of incidental take in these surveys. The survey now imposes strict 
monitoring and mitigation measures (see sections below on Proposed 
Mitigation and Proposed Monitoring and Reporting). With regard to 
common bottlenose dolphins, M/SI takes are only requested for offshore 
and Northern migratory stocks (10 total over the 5-year period). Given 
the lack of recent take and the implementation of additional monitoring 
and mitigation measures, the NEFSC is not requesting, and NMFS is not 
proposing to authorize, take of bottlenose dolphins belonging to the 
Southern Coastal Migratory or Estuarine stocks as the NEFSC considers 
there to be a remote chance of incidentally taking a bottlenose dolphin 
from the estuarine stocks. However, in the future, if there is a 
bottlenose dolphin take from the estuarine stocks as confirmed by 
genetic sampling, the NEFSC will reconsider its take request in 
consultation and coordination with OPR and the Atlantic Bottlenose 
Dolphin Take Reduction Team.
    In 2009, one gray seal was killed during a gillnet survey. Similar 
to other gear, the NEFSC believes that harbor seals have a similar 
vulnerability for incidental take as gray seals in this type of gear. 
To be conservative, for the period of this authorization, the NEFSC has 
requested one take by gillnet for harbor seals each year over the five-
year authorization period. Thus, for harbor and gray seals, we propose 
to authorize a total taking by M/SI of five individual over the five-
year timespan (Table 10).
    Fyke nets--For fyke nets, the NEFSC believes that gray seals have a 
similar vulnerability for incidental take as harbor seals which 
interacted once in a single fyke net set during the past 11 years. 
However, to be conservative, for the period of this authorization, the 
NEFSC has requested one take by fyke net for gray seals each year over 
the five-year authorization period. Thus, for gray seals, we propose to 
authorize a total taking by M/SI of five individual over the five-year 
timespan (Table 10).
    Longlines--While the NEFSC has not historically interacted with 
large whales or other cetaceans in its longline gear, it is well 
documented that some of these species are taken in commercial longline 
fisheries. The 2020 List of Fisheries classifies commercial fisheries 
based on prior interactions with marine mammals. Although the NEFSC 
used this information to help make an informed decision on the 
probability of specific cetacean and large whale interactions with 
longline gear, many other factors were also taken into account (e.g., 
relative survey effort, survey location, similarity in gear type,

[[Page 30106]]

animal behavior, prior history of NEFSC interactions with longline 
gear, etc.). Therefore, there are several species that have been shown 
to interact with commercial longline fisheries but for which the NEFSC 
is not requesting take. For example, the NEFSC is not requesting take 
of large whales, long-finned pilot whales, and short-finned pilot 
whales in longline gear. Although these species could become entangled 
in longline gear, the probability of interaction with NEFSC longline 
gear is extremely low considering a low level of survey effort relative 
to that of commercial fisheries, the short length of the mainline, and 
low numbers of hooks used. Based on the amount of fish caught by 
commercial fisheries versus NEFSC fisheries research, the ``footprint'' 
of research effort compared to commercial fisheries is very small. For 
example, NEFSC uses a shorter mainline length and lower number of hooks 
relative to that of commercial fisheries. The NEFSC considered 
previously caught species in analogous commercial fisheries to have a 
higher probability of take; however, all were not included for 
potential take by the NEFSC. Additionally, marine mammals have never 
been caught or entangled in NEFSC longline gear; if interactions occur 
marine mammals depredate caught fish from the gear but leave the hooks 
attached and unaltered. They have never been hooked nor had hooks taken 
off gear during depredation. However, such gear could be considered 
analogous to potential commercial longline surveys that may be 
conducted elsewhere (e.g., Garrison, 2007; Roche et al. 2007; Straley 
et al., 2014). Given that the NEFSC experienced a single interaction of 
a common dolphin during the effective period of the current LOA to 
date, the proposed issuance of this amount of take, by species, is 
reasonably conservative.
    The estimated take, by M/SI, is identical to that proposed and 
authorized to the NEFSC for the 2016-2020 LOA except for take 
pertaining to the southern migratory coastal stock of bottlenose 
dolphins. The 2016-2021 LOA authorizes 8 takes from this stock. 
According to the SAR, during the warm water months of July-August, the 
stock is presumed to occupy coastal waters north of Cape Lookout, North 
Carolina, to Assateague, Virginia. North of Cape Hatteras during summer 
months, there is strong separation between the coastal and offshore 
morphotypes (Kenney 1990; Garrison et al. 2017a), and the coastal 
morphotype is nearly completely absent in waters >20 m. However, the 
NEFSC has determined that because research effort is low in the habitat 
range of this stock and NEFSC has no documented takes of dolphins 
belonging to the southern migratory coastal stock, they are not 
requesting, and NMFS is not proposing to authorize, take.

               Table 10--Total Estimated M/SI Due to Gear Interaction in the Atlantic Coast Region
----------------------------------------------------------------------------------------------------------------
                                   5-Year total,   5-Year total,   5-Year total,   5-Year total,    5-Yr total,
             Species                 trawl \1\      gillnet \1\    longline \1\    fyke net \1\      all gears
----------------------------------------------------------------------------------------------------------------
Minke whale.....................               5               0               0               0               5
Risso's dolphin.................               2               0               1               0               3
Atlantic white-sided dolphin....               2               1               0               0               3
White-beaked dolphin............               2               0               0               0               2
Short-beaked common dolphin.....               5               1               1               0               7
Atlantic spotted dolphin........               2               0               0               0               2
Common bottlenose dolphin (WNA                 2               5               1               0               8
 offshore stock) \1\............
Common bottlenose dolphin (WNA                 2               5               1               0               8
 N. Migratory stock) \1\........
Harbor porpoise.................               2               5               0               0               7
Harbor seal.....................               5               5               0               5              15
Gray seal.......................               5               5               0               5              15
----------------------------------------------------------------------------------------------------------------
\1\ The NEFSC re-evaluated sampling locations and effort after submission of their LOA application and is not
  requesting takes for the southern migratory stock of bottlenose dolphins as fishing effort is very low.

Estimated Take From Scientific Sonar

    As described previously, we believe it unlikely that NEFSC use of 
active acoustic sources is realistically likely to cause Level B 
harassment of marine mammals. However, per NEFSC 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.
    Authorized takes from the use of active acoustic scientific sonar 
sources (e.g., echosounders) would be by Level B harassment only, in 
the form of disruption of behavioral patterns for individual marine 
mammals resulting from exposure to the use of active acoustic sources. 
Based on the nature of the activity, Level A harassment is neither 
anticipated nor proposed to be authorized.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes

[[Page 30107]]

available (e.g., previous monitoring results or average group size). 
Below, we describe the factors considered here in more detail and 
present the proposed take estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment). As described in detail for NEFSC and other science centers 
in previously issued Federal Register notices (e.g., 85 FR 53606, 
August 28, 2020; 88 FR 27028, May 6, 2020), the use of the sources used 
by NMFS Science Centers, including NEFSC, do not have the potential to 
cause Level A harassment; therefore, our discussion is limited to 
behavioral harassment (Level B harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g., 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for intermittent (e.g., scientific sonar) sources. NEFSC surveys 
include the use of non-impulsive, intermittent sources and therefore 
the 160 dB re 1 [mu]Pa (rms) threshold is applicable.
    The operating frequencies of active acoustic systems used by the 
NEFSC range from 30-333 kHz (see Table 2). Examination of these sources 
considers operational patterns of use relative to each other, and which 
sources would have the largest potential impact zone when used 
simultaneously. NEFSC determined that the EK60, ME70, and DSM 300 
sources comprise the total effective exposures relative to line-
kilometers surveyed (see Section 6.5 of the Application). Acoustic 
disturbance takes are calculated for these three dominant sources. Of 
these dominant acoustic sources, only the EK60 can use a frequency 
within the hearing range of baleen whales (18k Hz). Therefore, for 
North Atlantic right whales and all other baleen whales, Level B 
harassment is only expected for exposure to the EK60. The other two 
dominant sources are outside of their hearing range. The ADCP Ocean 
Surveyor operates at 75 kHz, which is outside of baleen whale hearing 
capabilities. Therefore, we would not expect any exposures to these 
signals to result in behavioral harassment in baleen whales.
    The assessment paradigm for active acoustic sources used in NEFSC 
fisheries research is relatively straightforward and has a number of 
key simple and conservative assumptions. NMFS' current acoustic 
guidance requires in most cases that we assume Level B harassment 
occurs when a marine mammal receives an acoustic signal at or above a 
simple step-function threshold. Estimating the number of exposures at 
the specified received level requires several determinations, each of 
which is described sequentially below:
    (1) A detailed characterization of the acoustic characteristics of 
the effective sound source or sources in operation;
    (2) The operational areas exposed to levels at or above those 
associated with Level B harassment when these sources are in operation;
    (3) A method for quantifying the resulting sound fields around 
these sources; and
    (4) An estimate of the average density for marine mammal species in 
each area of operation.
    Quantifying the spatial and temporal dimension of the sound 
exposure footprint (or ``swath width'') of the active acoustic devices 
in operation on moving vessels and their relationship to the average 
density of marine mammals enables a quantitative estimate of the number 
of individuals for which sound levels exceed the relevant threshold for 
each area. The number of potential incidents of Level B harassment is 
ultimately estimated as the product of the volume of water ensonified 
at 160 dB rms or higher and the volumetric density of animals 
determined from simple assumptions about their vertical stratification 
in the water column. Specifically, reasonable assumptions based on what 
is known about diving behavior across different marine mammal species 
were made to segregate those that predominately remain in the upper 200 
m of the water column versus those that regularly dive deeper during 
foraging and transit. Methods for estimating each of these calculations 
are described in greater detail in the following sections, along with 
the simplifying assumptions made, and followed by the take estimates.
    Sound source characteristics--An initial characterization of the 
general source parameters for the primary active acoustic sources 
operated by the NEFSC was conducted, enabling a full assessment of all 
sound sources used by the NEFSC. 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 the sources identified in Table 2 (e.g., lowest 
operating frequency) that would lead to the most precautionary estimate 
of maximum received level ranges (i.e., largest ensonified area) were 
used. The effective beam patterns took into account the normal modes in 
which these sources are typically operated. While these signals are 
brief and intermittent, a conservative assumption was taken in ignoring 
the temporal pattern of transmitted pulses in calculating 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.
    Calculating effective line-kilometers--As described below, based on 
the operating parameters for each source type, an estimated volume of 
water ensonified at or above the 160 dB rms threshold was calculated. 
In all cases where multiple sources are operated simultaneously, the 
one with the largest estimated acoustic footprint was considered to be 
the effective source. Two depth zones were defined for each of the four 
research areas: 0-200 m and >200 m. Effective line distance and volume 
ensonified was calculated for each depth strata (0-200 m and >200 m), 
where appropriate. In some cases, this resulted in different sources 
being predominant in each depth stratum for all line km (i.e., the 
total linear distance traveled during acoustic survey operations) when 
multiple sources were in operation. This was accounted for in 
estimating overall exposures for species

[[Page 30108]]

that utilize both depth strata (deep divers). For each ecosystem area, 
the total number of line km that would be surveyed was determined, as 
was the relative percentage of surveyed line km associated with each 
source. The total line-kilometers for each survey, the dominant source, 
the effective percentages associated with each depth, and the effective 
total volume ensonified are given below (Table 12).
    From the sources identified in Table 2, the NEFSC identified six of 
the eight as having the largest potential impact zones during 
operations based on their relatively lower output frequency, higher 
output power, and operational pattern of use: EK60, ME70, DSM 300, ADCP 
Ocean Surveyor, Simrad EQ50, and Netmind (80 FR 39542). Further 
examination of these six sources considers operational patterns of use 
relative to each other, and which sources would have the largest 
potential impact zone when used simultaneously. NEFSC determined that 
the EK60, ME 70, and DSM 300 sources comprise the total effective 
exposures relative to line-kilometers surveyed acoustic disturbance 
takes are calculated for these three dominant sources. Of these 
dominant acoustic sources, only the EK 60 can use a frequency within 
the hearing range of baleen whales (18k Hz). Therefore, for NARW and 
all other baleen whales, Level B harassment is only expected for 
exposure to the EK60. The other two dominant sources are outside of 
their hearing range.
    Calculating volume of water ensonified--The cross-sectional area of 
water ensonified to a 160 dB rms received level was calculated using a 
simple spherical spreading model of sound propagation loss (20 log R) 
such that there would be 60 dB of attenuation over 1,000 m. Spherical 
spreading is a reasonable assumption even in relatively shallow waters 
since, taking into account the beam angle, the reflected energy from 
the seafloor will be much weaker than the direct source and the volume 
influenced by the reflected acoustic energy would be much smaller over 
the relatively short ranges involved. We also accounted for the 
frequency-dependent absorption coefficient and beam pattern of these 
sound sources, which is generally highly directional. The lowest 
frequency was used for systems that are operated over a range of 
frequencies. The vertical extent of this area is calculated for two 
depth strata.
    Following the determination of effective sound exposure area for 
transmissions considered in two dimensions (Table 11), 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. Volumetric densities are presented in 
Table 12.

   Table 11--Effective Exposure Areas for Predominant Acoustic Sources
                         Across Two Depth Strata
------------------------------------------------------------------------
                               Effective exposure    Effective exposure
   Active acoustic system     area: Sea surface to  area: Sea surface to
                               200 m depth (km\2\)  depth >200 m (km\2\)
------------------------------------------------------------------------
EK60........................                0.0142                0.1411
ME70........................                0.0201                0.0201
DSM300......................                0.0004                0.0004
------------------------------------------------------------------------

Marine Mammal Density

    As described in the 2015 proposed rule (80 FR 39542), marine 
mammals were categorized into two generalized depth strata: Surface-
associated (0-200 m) or deep-diving (0 to >200 m). These depth strata 
are based on reasonable assumptions of behavior (Reynolds III and 
Rommell 1999). Animals in the shallow-diving strata were assumed to 
spend a majority of their lives (>75 percent) at depths of 200 m or 
shallower. For shallow-diving species, the volumetric density is the 
area density divided by 0.2 km (i.e., 200 m). The animal's volumetric 
density and exposure to sound is limited by this depth boundary.
    Species in the deeper diving strata were assumed to regularly dive 
deeper than 200 m and spend significant time at depth. For deeper 
diving species, the volumetric density is calculated as the area 
density divided by a nominal value of 0.5 km (i.e., 500 m), consistent 
with the approach used in the 2016 Final Rule (81 FR 53061). Where 
applicable, both LME and offshore volumetric densities are provided. As 
described in Section 6.5 of NEFSC's application, level of effort and 
acoustic gear types used by NEFSC differ in these areas and takes are 
calculated for each area (LME and offshore).

                                          Table 12--Marine Mammal and Volumetric Density in the Ensonfied Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Dive profile/                                                        Offshore
                                                                      vertical habitat       LME area     LME volumetric     Offshore       volumetric
                            Common name                            ----------------------  density (per    density (per    density (per    density (per
                                                                     0-200 m     >200 m     km2) \1 2\       km3) \3\       km2) \2 4\       km3) \5\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
NARW \6\..........................................................         X   .........          0.0030          0.0150               0               0
Humpback whale....................................................         X   .........          0.0016         0.00800               0               0
Fin whale.........................................................         X   .........          0.0048         0.02400         0.00005         0.00025

[[Page 30109]]

 
Sei whale.........................................................         X   .........          0.0008         0.00400               0               0
Minke whale.......................................................         X   .........           0.002         0.01000               0               0
Blue whale........................................................         X   .........        0.000009         0.00005        0.000009         0.00005
Sperm whale.......................................................  .........         X                0               0          0.0056         0.01120
Dwarf sperm whale.................................................  .........         X                0               0           0.005         0.01000
Pygmy sperm whale.................................................  .........         X                0               0           0.005         0.01000
Killer Whale......................................................         X   .........        0.000009         0.00005        0.000009         0.00005
Pygmy killer whale................................................         X   .........        0.000009         0.00005        0.000009         0.00005
Northern bottlenose whale.........................................  .........         X                0               0         0.00009         0.00018
Cuvier's beaked whale.............................................  .........         X                0               0          0.0062         0.01240
Mesoplodon beaked whales..........................................  .........         X                0               0          0.0046         0.00920
Melon-headed whale................................................         X   .........               0               0          0.0010         0.00500
Risso's dolphin...................................................         X   .........          0.0020         0.01000          0.0128         0.06400
Long-finned pilot whale...........................................  .........         X           0.0220         0.11000          0.0220         0.04400
Short-finned pilot whale..........................................  .........         X           0.0220         0.11000          0.0220         0.04400
Atlantic white-sided dolphin......................................         X   .........          0.0453         0.22650               0               0
White-beaked dolphin..............................................         X   .........         0.00003         0.00015               0               0
Short-beaked common dolphin.......................................         X   .........          0.0891         0.44550               0               0
Atlantic spotted dolphin..........................................         X   .........          0.0013         0.00650          0.0241         0.12050
Pantropical spotted dolphin.......................................         X   .........               0               0          0.0015         0.00750
Striped dolphin...................................................         X   .........               0               0          0.0614         0.30700
Fraser's dolphin..................................................         X   .........               0               0          0.0004        0.000200
Rough toothed dolphin.............................................         X   .........          0.0005         0.00250          0.0010        0.000200
Clymene dolphin...................................................         X   .........          0.0032         0.01600               0               0
Spinner dolphin...................................................         X   .........               0               0          0.0002         0.00100
Common bottlenose dolphin offshore stock..........................         X   .........               0               0          0.1615          0.3230
Common bottlenose dolphin coastal stocks..........................         X   .........          0.1359          0.6795               0               0
Harbor porpoise...................................................         X   .........          0.0403         0.20150               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Seal.......................................................         X   .........          0.2844          1.4220               0               0
Gray Seal.........................................................         X   .........          0.0939          0.4695               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ LME is the area in shore of the 200 m depth contour.
\2\ Source: Unless otherwise stated Roberts, Best et al. (2016).
\3\ LME volumetric density is the LME area density divided by 0.2 km.
\4\ Offshore is the area offshore of the 200 m depth contour.
\5\ Offshore volumetric density is the offshore area density divided by 0.2 km or 0.5 km for shallow or deep diving species or 0.5 km for deep diving
  species.
\6\ Density from Roberts, Schick et al. (2020).

Using Area of Ensonification and Volumetric Density To Estimate 
Exposures

    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. Source- and stratum-
specific exposure estimates are the product of these ensonified volumes 
and the species-specific volumetric densities (Table 12). The general 
take estimate equation for each source in each depth statrum is density 
* (ensonified volume * line kms). The humpback whale and exposure to 
sound from the EK 60 can be used to demonstrate the calculation:
    1. EK60 ensonified volume; 0-200 m: 0.0142 km\2\ * 16058.8 km = 
228.03 km\3\
    2. Estimated exposures to sound >=160 dB rms; humpback whale; EK60, 
LME region: (0.008 humpback whales/km\3\ * 228.03 km\3\ = 1.8 estimated 
humpback exposures to SPLs >=160 dB rms resulting from use of the EK60 
in the 0-200 m depth stratum.
    Similar calculations were conducted for the ME 70 and DSM300 for 
each animal in the LME region, with the exception of baleen whales, as 
these sound sources are outside of their hearing range. Totals in 
Tables 13 and 14 represent the total take of marine mammals, by 
species, across all relevant surveys and sources rounded up to the 
nearest whole number.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP04JN21.001


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[GRAPHIC] [TIFF OMITTED] TP04JN21.002

BILLING CODE 3510-22-C

Estimated Take Due to Physical Disturbance

    Estimated take due to physical disturbance could potentially occur 
in the Penobscot River Estuary as a result of the unintentional 
approach of NEFSC vessels to pinnipeds hauled out on ledges.
    The NEFSC uses three gear types (fyke nets, rotary screw traps, and 
Mamou shrimp trawl) to monitor fish communities in the Penobscot River 
Estuary. The NEFSC conducts the annual surveys over specific sampling 
periods which could use any gear type: Mamou trawling is conducted 
year-round; fyke net surveys are conducted

[[Page 30112]]

April-November; and rotary screw trap surveys from April-June.
    We anticipate that trawl and fyke net surveys may disturb harbor 
seals and gray seals hauled out on tidal ledges through physical 
presence of researchers. The NEFSC conducts these surveys in upper 
Penobscot Bay above Fort Point Ledge where there is only one minor seal 
ledge (Odum Ledge) used by approximately 50 harbor seals (i.e., based 
on a June 2001 survey). In 2017, only 20 seals were observed in the 
water during the Penobscot Bay surveys (NEFSC 2018) as described below. 
Although one cannot assume that the number of seals using this region 
is stable over the April-November survey period; use of this area by 
seals likely lower in spring and autumn.
    There were no observations of gray seals in the 2001 survey, but 
recent anecdotal information suggests that a few gray seals may share 
the haulout site. These fisheries research activities do not entail 
intentional approaches to seals on ledges (i.e., boats avoid close 
approach to tidal ledges and no gear is deployed near the tidal 
ledges); only behavioral disturbance incidental to small boat 
activities is anticipated. It is likely that some pinnipeds on the 
ledges would move or flush from the haulout into the water in response 
to the presence or sound of NEFSC survey vessels. Behavioral responses 
may be considered according to the scale shown in Table 15. We consider 
responses corresponding to Levels 2-3 to constitute Level B harassment.

                 Table 15--Seal Response to Disturbance
------------------------------------------------------------------------
          Level              Type of response           Definition
------------------------------------------------------------------------
1.......................  Alert................  Seal head orientation
                                                  or brief movement in
                                                  response to
                                                  disturbance, which may
                                                  include turning head
                                                  towards the
                                                  disturbance, craning
                                                  head and neck while
                                                  holding the body rigid
                                                  in a u-shaped
                                                  position, changing
                                                  from a lying to a
                                                  sitting position, or
                                                  brief movement of less
                                                  than twice the
                                                  animal's body length.
2.......................  Movement.............  Movements 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.
------------------------------------------------------------------------

    Only two research projects would involve the physical presence of 
researchers that may result in Level B incidental harassment of 
pinnipeds on haulouts. These surveys would occur in Penobscot Bay. 
Seals observed by NEFSC researchers on haulouts and in adjacent waters 
from 2017 through 2020 are presented in Table 16. The 2016 final rule 
(81 FR 53061) estimated that all hauled out seals could be disturbed by 
passing research skiffs. This was a conservative assumption given that 
only 20 seals were observed in the water during the actual 2017 
Penobscot Bay surveys (NEFSC 2018b), and researchers have estimated 
that only about 10 percent of hauled out seals had been visibly 
disturbed in the past (NMFS 2016). Thus, for this proposed rule, it is 
assumed that 10 percent of the animals hauled out could be flushed into 
the water and taken. The resulting requested take is estimated based on 
the number of days per year the activity might take place, times the 
number of seals potentially affected (10 percent of the number hauled). 
Table 17 provides the estimated annual and 5-year takes of harbor and 
gray seals due to behavioral harassment during surveys in the lower 
estuary of the Penobscot River.

                                  Table 16--Seals Observed in Penobscot Bay During Hydroacoustic Surveys From 2017-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       2017                            2018                            2019
                                                         -----------------------------------------------------------------------------------------------
                         Species                             Count on                        Count on                        Count on
                                                              haulout     Count in water      haulout     Count in water      haulout     Count in water
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seals............................................             242              65             401              52             330              50
Gray seals..............................................               2              17              11               2              33              29
--------------------------------------------------------------------------------------------------------------------------------------------------------


                              Table 17--Estimated Take, by Level B Harassment, of Pinnipeds During Penobscot River Surveys
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Estimated       Estimated annual instances of harassment
                                                          Estimated       number of   ------------------------------------------------    5-Year total
                                                          number of         seals                                                      harassment  takes
                     Common name                        seals hauled     potentially    Fyke net 100    Mamou shrimp                     requested  all
                                                            out1       disturbed  per        DAS        trawl 12 DAS        Total            gears
                                                                            day2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seals.........................................             400              40           4,000             480           4,480             22,400
Gray seals...........................................              30               3             300              36             336              1,680
--------------------------------------------------------------------------------------------------------------------------------------------------------

Summary of Estimated Incidental Take

    Here we provide summary tables detailing the total proposed 
incidental take authorization on an annual basis for the NEFSC in the 
Atlantic coast region, as well as other information relevant to the 
negligible impact analyses.

[[Page 30113]]



                        Table 18--Total Proposed M/SI and Level B Harassment Over 5 Years
                                                   [2021-2026]
----------------------------------------------------------------------------------------------------------------
                                   5-Year total                 Annual Level B take
                                   M/SI proposed ------------------------------------------------   Total 5-yr
           Common name                 take                                        Total  (% of    Level B take
                                   authorization        LME          Offshore       population)      2021-2026
----------------------------------------------------------------------------------------------------------------
NARW............................               0               4               0          4 (<1)              20
Humpback whale..................               0               2               0          2 (<1)              10
Fin whale.......................               0               6               1          7 (<1)              35
Sei whale.......................               0               1               0          1 (<1)               5
Minke whale.....................               5               3               0          3 (<1)              15
Blue whale......................               0               1               1          2 (<1)              10
Sperm whale.....................               0               0               5          5 (<1)              25
Dwarf sperm whale...............               0               0               4          4 (<1)              20
Pygmy sperm whale...............               0               0               4          4 (<1)              20
Killer Whale....................               0               1               1          2 (<1)              10
Pygmy killer whale..............               0               1               1          2 (<1)              10
Northern bottlenose whale.......               0               0               1          1 (<1)               5
Cuvier's beaked whale...........               0               0               5          5 (<1)              25
Mesoplodon beaked whale.........               0               0               4          4 (<1)              20
Melon-headed whale..............               0               0               1          1 (<1)               5
Risso's dolphin.................               3              12               9         21 (<1)             105
Long-finned pilot whale.........               0             129              17        146 (<1)             730
Short-finned pilot whale........               0             129              17        146 (<1)             730
Atlantic white-sided dolphin....               3             265               0        281 (<1)           1,325
White-beaked common dolphin.....               2               1               0          1 (<1)               5
Short-beaked common dolphin.....               7             520               0        520 (<1)           2,600
Atlantic spotted dolphin........               2               8              16         24 (<1)             120
Pantropical spotted dolphin.....               0               0               1          1 (<1)               5
Striped dolphin.................               0               0              41         41 (<1)             205
Fraser's dolphin................               0               0               1          1 (<1)               5
Rough toothed dolphin...........               0               3               1           4 (3)              20
Clymene dolphin.................               0              19               0         19 (<1)              95
Spinner dolphin.................               0               0               5          5 (<1)              25
Bottlenose dolphin\1\...........          \1\ 16             794              43        837 (12)           4,185
Harbor Porpoise.................               7             236               0        236 (<1)           1,180
Harbor seals \2\................              15           1,660               0     6,140 (8.1)          30,700
                                                           4,480
Gray seals \2\..................              15             549               0       885 (3.2)           4,425
                                                             336
----------------------------------------------------------------------------------------------------------------
\1\ Eight M/SI takes each from the offshore and northern migratory coastal stocks, over the 5-year period.
\2\ For Level B takes, the first number is disturbance due to acoustic sources, the second is physical
  disturbance due to surveys in Penobscot Bay.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
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 the 
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, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) 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.

Mitigation for Marine Mammals and Their Habitat

    The NEFSC 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. The mitigation measures discussed here have been determined to 
be both effective and practicable and, in some cases, have already been 
implemented by the NEFSC. In addition, while not currently being 
investigated, any future

[[Page 30114]]

potentially effective and practicable gear modification mitigation 
measures are part of the adaptive management strategy included in this 
rule.

General Measures

    Visual Monitoring--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 
NEFSC 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, longline gear), and 
they continue until gear is brought back on board. If marine mammals 
are sighted in the area within 15 minutes prior to deployment of gear 
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 there are no sightings for 15 minutes within 1nm of 
sampling location. On smaller vessels, the Chief Scientist (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.
    Coordination and Communication--When NEFSC 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 NEFSC 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 regarding the implementation of mitigation measures. 
When NEFSC survey effort is conducted aboard cooperative platforms 
(i.e., non-NOAA vessels), ultimate responsibility and decision 
authority again rests with non-NEFSC personnel (i.e., vessel's master 
or captain). Although the discussion throughout this Rule does not 
always explicitly reference those with decision-making authority from 
cooperative platforms, all mitigation measures apply with equal force 
to non-NOAA vessels and personnel as they do to NOAA vessels and 
personnel. 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 
NEFSC survey effort is composed, in part or whole, of NEFSC staff and 
is led by a CS. Therefore, because the NEFSC--not OMAO or any other 
entity that may have authority over survey platforms used by NEFSC--is 
the applicant to whom any incidental take authorization issued under 
the authority of these proposed regulations would be issued, we require 
that the NEFSC 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. NEFSC will coordinate 
and conduct briefings at the outset of each survey and as necessary 
between the 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.
    The NEFSC will coordinate with the local Northeast Regional 
Stranding Coordinator and the NMFS Stranding Coordinator for any 
unusual protected species behavior and any stranding, beached live/
dead, or floating protected species that are encountered during field 
research activities. If a large whale is alive and entangled in fishing 
gear, the vessel will immediately call the U.S. Coast Guard at VHF Ch. 
16 and/or the appropriate Marine Mammal Health and Stranding Response 
Network for instructions. All entanglements (live or dead) and vessel 
strikes must be reported immediately to the NOAA Fisheries Marine 
Mammal Stranding Hotline at 888-755-6622. In addition, any entanglement 
or vessel strike must be reported to the NMFS Protected Species 
Incidental Take database (PSIT) within 48 hours of the event happening 
(see Proposed Monitoring and Reporting).

Vessel Speed Limits and Course Alteration

    When NEFSC research vessels are actively sampling, cruise speeds 
are less than 5 kts, typically 2-4 kts, a speed at which the 
probability of collision and serious injury of large whales is de 
minimus. However, transit speed between active sampling stations will 
range from 10-12 kts, except in areas where vessel speeds are regulated 
to lower speeds.
    On 9 December 2013, NMFS published a ``Final rule to remove sunset 
provision of the Final Rule Implementing Vessel Speed Restrictions to 
Reduce the Threat of Ship Collisions with NARWs'' (78 FR 73726). The 
2013 final rule continued the vessel speed restrictions to reduce the 
threat of ship collisions with NARWs that were originally published in 
a final rule on 10 October 2008 (73 FR 60173). The rule requires that 
vessels 65 feet and greater in length travel at 10 knots or less near 
key port entrances and in certain areas of right whale aggregation 
along the U.S. eastern seaboard, known as ``Seasonal Management 
Areas''. The spatial and temporal locations of SMAs from Maine to 
Florida can be found at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#vessel-speed-restrictions. In addition, Right Whale Slow 
Zones is a program that notifies vessel operators of areas where 
maintaining speeds of 10 knots or less can help protect right whales 
from vessel collisions. Under this program, NOAA Fisheries provides 
maps and coordinates to vessel operators indicating areas where right 
whales have been detected. Mariners are encouraged to avoid these areas 
or reduce speeds to 10 knots or less while transiting through these 
areas for 15 days. Right Whale Slow Zones are established around areas 
where right whales have been recently seen or heard. These areas are 
identical to Dynamic Management Areas (DMA) when triggered by right 
whale visual sightings, but they will also be established when right 
whale detections are confirmed from acoustic receivers. All NEFSC 
vessels over 65 ft will abide

[[Page 30115]]

by all speed and course restrictions in SMAs and DMAs. Prior to and 
during research surveys, NEFSC will maintain awareness if right whales 
have been detected in transit or fishing areas.

Handling Procedures

    Handling procedures are those taken to return a live animal to the 
sea or process a dead animal. The NEFSC will implement a number of 
handling protocols to minimize potential harm to marine mammals that 
are incidentally taken during the course of fisheries research 
activities. In general, protocols have already been prepared for use on 
commercial fishing vessels. Although commercial fisheries take larger 
quantities of marine mammals than fisheries research, the nature of 
such takes by entanglement or capture are similar. Therefore, the NEFSC 
would adopt commercial fishery disentanglement and release protocols 
(summarized below), which should increase post-release survival. 
Handling or disentangling marine mammals carries inherent safety risks, 
and using best professional judgment and ensuring human safety is 
paramount.
    Captured or entangled 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. NEFSC is responsible for training NEFSC 
and partner affiliates 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. 
Human safety is always the paramount concern.

Move-On Rule

    For all research surveys using gear that has the potential to hook 
or entangle a marine mammal, the NEFSC must implement move-on rule 
mitigation protocol upon observation of any marine mammal other than 
dolphins and porpoises attracted to the vessel (see specific gear types 
below for marine mammal monitoring details). Specifically, if one or 
more marine mammals (other than dolphins and porpoises) are observed 
near the sampling area 15 minutes prior to setting gear and are 
considered at risk of interacting with the vessel or research gear, or 
appear to be approaching the vessel and are considered at risk of 
interaction, NEFSC must either remain onsite or move on to another 
sampling location. If remaining onsite, the set must be delayed until 
the animal(s) depart or appear to no longer be at risk of interacting 
with the vessel or gear. If gear deployment or retrieval is suspended 
due to protected species presence, resume only after there are no 
sightings for 15 minutes within 1nm of sampling location. At such time, 
the NEFSC may deploy gear. The NEFSC must use best professional 
judgment, in making decisions related to deploying gear.

Trawl Surveys (Beam, Mid-Water, and Bottom Trawls)

    The NEFSC deploys trawl nets in all layers of the water column. For 
all beam, mid-water, and bottom trawl, the NEFSC will initiate visual 
observation for protected species no less than 15 minutes prior to gear 
deployment. NEFSC will scan the surrounding waters with the naked eye 
and rangefinding binoculars and will continue visual monitoring while 
gear is deployed. During nighttime operations, NEFSC will observe with 
the naked eye and any available vessel lighting. If protected species 
are sighted within 15 minutes before setting gear, the OOD may 
determine whether to implement the ``move-on'' rule and transit to a 
different section of the sampling area. Trawl gear will not be deployed 
if protected species are sighted near the ship unless there is no risk 
of interaction as determined by the OOD or CS. If, after moving on, 
protected species are still visible from the vessel and appear at risk, 
the OOD may decide to move again, skip the station, or wait until the 
marine mammal(s) leave the area and/or are considered no longer at 
risk. If gear deployment or retrieval is suspended due to protected 
species presence, fishing may commence after there are no sightings for 
15 minutes within 1nm of sampling location. If deploying bongo plankton 
or other small net prior to trawl gear, NEFSC will continue visual 
observations until trawl gear is ready to be deployed.
    NEFSC trawl surveys will follow the standard tow durations of no 
more than 30 minutes at target depth for distances less than 3 nautical 
miles (nm). The exceptions to the 30-minute tow duration are the 
Atlantic Herring Acoustic Pelagic Trawl Survey and the Deepwater 
Biodiversity Survey where total time in the water (deployment, fishing, 
and haul-back) is 40 to 60 minutes and 180 minutes, respectively. Trawl 
tow distances will be not more than 3 nmi to reduce the likelihood of 
incidentally taking marine mammals. Typical tow distances are 1-2 nmi, 
depending on the survey and trawl speed. Bottom trawl tows will be made 
in either straight lines or following depth contours, whereas other 
tows targeting fish aggregations and deep-water biodiversity tows may 
be made along oceanographic or bathymetric features. In all cases, 
sharp course changes will be avoided in all surveys.
    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, observations will continue 
around the vessel to maintain a lookout for the presence of marine 
mammals. If marine mammals are sighted before the gear is fully 
retrieved, resume only after there are no sightings for 15 minutes 
within 1 nmi of the sampling location. The OOD may also use the most 
appropriate response to avoid incidental take in consultation with the 
CS and other experienced crew as necessary. This judgment will be based 
on his/her past experience operating gears around marine mammals and 
NEFSC training sessions that will facilitate dissemination of Chief 
Scientist. Captain 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. For instance, a whale 
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. It may sometimes be 
safer to continue trawling until the marine mammals have lost interest 
or transited through the area before beginning haulback operations. In 
other situations, swift retrieval of the net may be the best course of 
action. If trawling is delayed because of protected species presence, 
trawl operations only resume when the animals have no longer been 
sighted or are no longer at risk. In any case, no gear will be deployed 
if marine mammals or other protected species

[[Page 30116]]

have been sighted that may be a risk of interaction with gear. Gear 
will be retrieved immediately if marine mammals are believed to be at 
risk of entanglement or observed as being entangled.
    The acoustical cues generated during haulback may attract marine 
mammals. The NEFSC will continue monitoring for the presence of marine 
mammals during haulback. 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. NEFSC will open the codend of the net 
close to the deck/sorting area to avoid damage to animals that may be 
caught in gear. 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.

Gillnet Surveys

    The NEFSC will limit gillnet soak times to the least amount of time 
required to conduct sampling. Gillnet research will only be conducted 
during daylight hours. NEFSC will conduct marine mammal monitoring 
beginning 15 minutes prior to deploying the gear and continue until 
gear is back on deck. For the COASTSPAN gillnet surveys, NEFSC must 
actively monitor for potential bottlenose dolphin entanglements by 
hand-checking the gillnet every 30 minutes or if a disturbance in the 
net is observed (even if marine mammals are not observed).
    NEFSC will pull gear immediately if disturbance in the nets is 
observed. All gillnets will be designed with minimal net slack and 
excess floating and trailing lines will be removed. NEFSC will set only 
new of fully repaired gill nets thereby eliminating holes, and modify 
nets to avoid large vertical gaps between float line and net as well as 
lead line and net when set. If a marine mammal is sighted during 
approach to a station or prior to deploying gear, nets would not be 
deployed until the animal has left the area, is on a path away from 
where the net would be set, or has not been re-sighted within 15 
minutes. Alternatively, the research team may move the vessel to an 
area clear of marine mammals. If the vessel moves, the 15 minute 
observation period is repeated. Monitoring by all available crew would 
continue while the net is being deployed, during the soak, and during 
haulback.
    If protected species are not sighted during the 15 minute 
observation period, the gear may be set. Waters surrounding the net and 
the net itself would be continuously monitored during the soak. If 
protected species are sighted during the soak and appear to be at risk 
of interaction with the gear, then the gear is pulled immediately. If 
fishing operations are halted, operations resume when animal(s) have 
not been sighted within 15 minutes or are determined to no longer be at 
risk. In other instances, the station is moved or cancelled. If any 
disturbance in the gear is observed in the gear, the net will be 
immediately checked or pulled.
    The NEFSC will clean gear prior and during deployment. The catch 
will be emptied as quickly as possible. On Observer Training cruises, 
acoustic pingers and weak links are used on all gillnets consistent 
with the regulations and TRPs for commercial fisheries. All NEFOP 
protocols are followed as per current NEFOP Observer Manual.

Longline Surveys

    Similar to other surveys, NEFSC will deploy longline gear as soon 
as practicable upon arrival on station. They will initiate visual 
observations for marine mammals no less than 15 minutes prior to 
deployment and continue until gear is back on deck. Observers will scan 
surrounding waters with the naked eye and binoculars (or monocular). 
Monitoring, albeit limited visibility, will occur during nighttime 
surveys using the naked eye and available vessel lighting. If marine 
mammals are sighted within 1nmi of the station within 15 minutes before 
setting gear, NEFSC will suspend gear deployment until the animals have 
moved on a path away from the station or implement the move-on rule. If 
gear deployment or retrieval is suspended due to presence of marine 
mammals, resume operations only after there are no sightings for at 
least 15 minutes within 1nmi of sampling location. In no case will 
longlines be deployed if animals are considered at-risk of interaction. 
When visibility allows, the OOD, CS, and crew standing watch will 
conduct set checks every 15 minutes to look for hooked, trapped, or 
entangled marine mammals. In addition, chumming is prohibited.

Fyke Net Surveys

    NEFSC will conduct monitoring of marine mammals 15 minutes prior to 
setting gear and continue until gear is back on deck. If marine mammals 
are observed within 100 m of the station, NEFSC will delay setting the 
gear until the marine mammal(s) has moved past and on a path away from 
the station or implement the move-on rule. Similar to other gear 
measures, fyke nets will not be deployed in the animal(s) is deemed at-
risk of interaction. If marine mammals are observed during sampling, 
gear will be pulled if the marine mammals is deemed at-risk of 
interacting with the gear. NEFSC will conduct monitoring and retrieval 
of gear every 12 to 24 hour soak period.
    Fyke nets equal or greater to 2 m will be fitted with a marine 
mammal excluder device. The exclusion device consists of a grate the 
dimensions of which were based on exclusion devices on Penobscot 
Hydroelectric fishway facilities that are four to six inches and allow 
for passage of numerous target species including river herring, eels, 
striped bass, and adult salmon. The 1-m fyke net does not require an 
excluder device as the opening is 12 cm. These small openings will 
prevent marine mammals from entering the nets.

Pot/Trap Surveys

    All pot/trap surveys will implement that same mitigation as 
described for longline surveys.

Dredge Surveys

    For all scallop and hydraulic clam dredges, the OOD, CS or others 
will scan for marine mammals for 15 minutes prior to deploying gear. If 
marine mammals are observed within 1 km of the station, NEFSC will 
delay setting the gear until the marine mammal(s) has moved past and on 
a path away from the station or implement the move-on rule or the OOD 
or CS may implement the move-on rule. Dredge gear will not be deployed 
in the marine mammal is considered at-risk of interaction.
    Sampling will be conducted upon arrival at the station and continue 
until gear is back on deck. Similar to trawl gear, care will be taken 
when emptying the nets to avoid damage to any marine mammals that may 
be caught in the gear but are not visible upon retrieval. NEFSC will 
empty the net close to the deck/sorting area to avoid damage to marine 
mammals that may be caught in gear. The gear will be emptied as quickly 
as possible after retrieval in order to determine whether or not marine 
mammals are present.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the

[[Page 30117]]

monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual 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 other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.
    NEFSC must designate a compliance coordinator who must be 
responsible for ensuring compliance with all requirements of any LOA 
issued pursuant to these regulations and for preparing for any 
subsequent request(s) for incidental take authorization.
    Since the 2016 final rule, NEFSC has made its training, operations, 
data collection, animal handling, and sampling protocols more 
systematic 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. In addition, NMFS has established a formal incidental 
take reporting system, the PSIT database, requiring that incidental 
takes of protected species be reported within 48 hours of the 
occurrence. The PSIT generates automated messages to agency leadership 
and other relevant staff and alerts them to the event and that updated 
information describing the circumstances of the event have been 
inputted into the database. It is in this spirit that we propose the 
monitoring requirements described below.

Visual Monitoring

    Marine mammal watches are a standard part of conducting fisheries 
research activities and are implemented as described previously in 
``Proposed Mitigation.'' Dedicated marine mammal visual monitoring 
occurs as described (1) for some period prior to deployment of most 
research gear; (2) throughout deployment and active fishing of all 
research gears; (3) for some period prior to retrieval of longline 
gear; and (4) throughout retrieval of all research gear. This visual 
monitoring is performed by trained NEFSC personnel or other trained 
crew during the monitoring period. Observers record the species and 
estimated number of animals present and their behaviors. This may 
provide valuable information towards an understanding of whether 
certain species may be attracted to vessels or certain survey gears. 
Separately, personnel on watch (those navigating the vessel and other 
crew; these will typically not be NEFSC personnel) monitor for marine 
mammals 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 personnel on watch 
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, soaking, or retrieved or when marine mammals are observed in 
the path of the ship during transit.
    NEFSC will also monitor disturbance of hauled out pinnipeds 
resulting from the presence of researchers, paying particular attention 
to the distance at which pinnipeds are disturbed. Disturbance will be 
recorded according to the three-point scale, representing increasing 
seal response to disturbance, as shown in Table 15.

Training

    NMFS considers the proposed suite of monitoring and operational 
procedures to be necessary to avoid adverse interactions with protected 
species and still allow NEFSC to fulfill its scientific missions. 
However, some mitigation measures such as the move-on rule require 
judgments about the risk of gear interactions with protected species 
and the best procedures for minimizing that risk on a case-by-case 
basis. Vessel operators and Chief Scientists are charged with making 
those judgments at sea. They are all highly experienced professionals 
but there may be inconsistencies across the range of research surveys 
conducted and funded by NEFSC in how those judgments are made. In 
addition, some of the mitigation measures described above could also be 
considered ``best practices'' for safe seamanship and avoidance of 
hazards during fishing (e.g., prior surveillance of a sample site 
before setting trawl gear). At least for some of the research 
activities considered, explicit links between the implementation of 
these best practices and their usefulness as mitigation measures for 
avoidance of protected species may not have been formalized and clearly 
communicated with all scientific parties and vessel operators. NMFS 
therefore proposes a series of improvements to NEFSC protected species 
training, awareness, and reporting procedures. NMFS expects these new 
procedures will facilitate and improve the implementation of the 
mitigation measures described above.
    NEFSC will continue to use the process for its Chief Scientists and 
vessel operators to communicate with each other about their experiences 
with marine mammal interactions during research work with the goal of 
improving decision-making regarding avoidance of adverse interactions. 
As noted above, there are many situations where professional judgment 
is used to decide the best course of action for avoiding marine mammal 
interactions before and during the time research gear is in the water. 
The intent of this mitigation measure is to draw on the collective 
experience of people who have been making those decisions, provide a 
forum for the exchange of information about what went right and what 
went wrong, and try to determine if there are any rules-of-thumb or key 
factors to consider that would help in future decisions regarding 
avoidance practices. NEFSC would coordinate not only among its staff 
and vessel captains

[[Page 30118]]

but also with those from other fisheries science centers and 
institutions with similar experience.
    NEFSC would also continue utilizing the formalized marine mammal 
training program required for all NEFSC research projects and for all 
crew members that may be posted on monitoring duty or handle 
incidentally caught marine mammals. Training programs would be 
conducted on a regular basis and would include topics such as 
monitoring and sighting protocols, species identification, decision-
making factors for avoiding take, procedures for handling and 
documenting marine mammals caught in research gear, and reporting 
requirements. The Observer Program currently provides protected species 
training (and other types of training) for NMFS-certified observers 
placed on board commercial fishing vessels. NEFSC Chief Scientists and 
appropriate members of NEFSC research crews will be trained using 
similar monitoring, data collection, and reporting protocols for marine 
mammal as is required by the Observer Program. All NEFSC research crew 
members that may be assigned to monitor for the presence of marine 
mammals during future surveys will be required to attend an initial 
training course and refresher courses annually or as necessary. The 
implementation of this training program would formalize and standardize 
the information provided to all research crew that might experience 
marine mammal interactions during research activities.
    For all NEFSC research projects and vessels, written cruise 
instructions and protocols for avoiding adverse interactions with 
marine mammals will be reviewed and, if found insufficient, made fully 
consistent with the Observer Program training materials and any 
guidance on decision-making that arises out of the two training 
opportunities described above. In addition, informational placards and 
reporting procedures will be reviewed and updated as necessary for 
consistency and accuracy. All NEFSC research cruises already include 
pre-sail review of marine mammal protocols for affected crew but NEFSC 
will also review its briefing instructions for consistency and 
accuracy.
    NEFSC will continue to coordinate with the Greater Atlantic 
Regional Fisheries Office (GARFO), NEFSC fishery scientists, NOAA 
research vessel personnel, and other NMFS staff as appropriate to 
review data collection, marine mammal interactions, and refine data 
collection and mitigation protocols, as required. NEFSC will also 
coordinate with NMFS' Office of Science and Technology to ensure 
training and guidance related to handling procedures and data 
collection is consistent with other fishery science centers, where 
appropriate.

Reporting

    NMFS has established a formal incidental take reporting system, the 
Protected Species Incidental Take (PSIT) database, requiring that 
incidental takes of protected species be reported within 48 hours of 
the occurrence. The PSIT generates automated messages to NMFS 
leadership and other relevant staff, alerting them to the event and to 
the fact that updated information describing the circumstances of the 
event has been inputted to the database. The PSIT and CS reports 
represent not only valuable real-time reporting and information 
dissemination tools but also serve as an archive of information that 
may be mined in the future to study why takes occur by species, gear, 
region, etc. The NEFSC is required to report all takes of protected 
species, including marine mammals, to this database within 48 hours of 
the occurrence and following standard protocol.
    In the unanticipated event that NEFSC fisheries research activities 
clearly cause the take of a marine mammal in a prohibited manner, NEFSC 
personnel engaged in the research activity must immediately cease such 
activity until such time as an appropriate decision regarding activity 
continuation can be made by the NEFSC Director (or designee). The 
incident must be reported immediately to OPR and the NMFS GARFO. OPR 
will review the circumstances of the prohibited take and work with 
NEFSC to determine what measures are necessary to minimize the 
likelihood of further prohibited take and ensure MMPA compliance. The 
immediate decision made by NEFSC regarding continuation of the 
specified activity is subject to OPR concurrence. The report must 
include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident including, but not limited to, 
monitoring prior to and occurring at time of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s) (e.g. dead, injured but alive, injured 
and moving, blood or tissue observed in the water, status unknown, 
disappeared, etc.); and
    (ix) Photographs or video footage of the animal(s).
    In the event that NEFSC discovers an injured or dead marine mammal 
and determines that the cause of the injury or death is unknown and the 
death is relatively recent (e.g., in less than a moderate state of 
decomposition), NEFSC must immediately report the incident to OPR and 
the NMFS GARFO. The report must include the information identified 
above. Activities may continue while OPR reviews the circumstances of 
the incident. OPR will work with NEFSC to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    In the event that NEFSC discovers an injured or dead marine mammal 
and determines that the injury or death is not associated with or 
related to NEFSC fisheries research activities (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, 
scavenger damage), NEFSC must report the incident to OPR and GARFO, 
NMFS, within 24 hours of the discovery. NEFSC must provide photographs 
or video footage or other documentation of the stranded animal sighting 
to OPR.
    In the event of a ship strike of a marine mammal by any NEFSC or 
partner vessel involved in the activities covered by the authorization, 
NEFSC or partner must immediately report the information described 
above, as well as the following additional information:
    (i) Vessel's speed during and leading up to the incident;
    (ii) Vessel's course/heading and what operations were being 
conducted;,
    (iii) Status of all sound sources in use;
    (iv) 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;
    (v) Estimated size and length of animal that was struck; and
    (vi) Description of the behavior of the marine mammal immediately 
preceding and following the strike.
    NEFSC will also collect and report all necessary data, to the 
extent practicable given the primacy of human safety and the well-being 
of captured or entangled marine mammals, to facilitate serious injury 
(SI) determinations for marine mammals that are released alive. NEFSC 
will require that the CS complete data forms and address supplemental 
questions, both of which have been

[[Page 30119]]

developed to aid in SI determinations. NEFSC 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 NEFSC will perform all necessary reporting to ensure that 
any incidental M/SI is incorporated as appropriate into relevant SARs.

Negligible Impact Analysis and Determination

    Introduction--NMFS has defined negligible impact as an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival (50 CFR 216.103). A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
takes alone is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' by mortality, serious injury, 
and Level A or Level B harassment, we consider other factors, such as 
the likely nature of any behavioral responses (e.g., intensity, 
duration), the context of any such responses (e.g., critical 
reproductive time or location, migration), as well as effects on 
habitat, and the likely effectiveness of mitigation. We also assess the 
number, intensity, and context of estimated takes by evaluating this 
information relative to population status. Consistent with the 1989 
preamble for NMFS' 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 NEFSC'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 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

[[Page 30120]]

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 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

[[Page 30121]]

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 Southeast Fisheries 
Science Center (SEFSC) and U.S. Navy 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 NEFSC 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 10) 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 NEFSC 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 19 shows information relevant 
to our negligible impact analysis concerning the annual amount of M/SI 
take that could occur for each stock when considering the proposed 
incidental take along with other sources of M/SI. 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.
    We previously authorized take of marine mammals incidental to 
fisheries research operations conducted by the SEFSC (see 85 FR 27028, 
May 6, 2020) and U.S. Navy (84 FR 70712, December 23, 2019). This take 
would occur to some of the same stocks for which we may authorize take 
incidental to NEFSC 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 SEFSC fisheries and ecosystem 
research and U.S. Navy testing and training in the Atlantic Ocean. As 
used in this document, other ongoing sources of human-caused 
(anthropogenic) mortality refers to estimates of realized or actual 
annual mortality reported in the SARs and does not include authorized 
or unknown mortality. Below, we consider the total taking by M/SI for 
NEFSC activities and previously authorized for SEFSC and Navy 
activities 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

[[Page 30122]]

mortality. PBR and annual M/SI values considered in Table 19 reflect 
the most recent information available (i.e., draft 2020 SARs).

               Table 19--Summary Information Related to NEFSC Proposed Annual Take by Mortality or Serious Injury Authorization, 2021-2026
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Proposed
                                                             Stock    NEFSC M/SI               Annual M/  SEFSC take   Navy AFTT              Total M/SI
              Species                       Stock          abundance     take         PBR         SI        by M/SI   take by M/     r-PBR    take r-PBR
                                                                       (annual)                                           SI                      (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke whale.......................  Canadian East Coast.       2,591           1         170        10.6           0        0.14      159.26        0.63
Risso's dolphin...................  W. North Atlantic...      35,493         0.6         303        54.3         0.2           0       248.5        0.24
Atlantic white-sided dolphin......  ....................      93,233         0.6         544          26           0         1.4       516.6        0.12
White-beaked common dolphin.......  ....................     536,016         0.4       4,153           0           0           0       4,153        0.01
Short-beaked common dolphin.......  ....................     172,974         1.4       1,452         399         0.8           0     1,052.2        0.13
Atlantic spotted dolphin..........  ....................      39,921         0.4         320           0         0.8           0       319.2        0.13
bottlenose dolphin................  (offshore stock)....      62,851         1.6         519          28         0.8           0       490.2        0.33
bottlenose dolphin................  (N. migratory stock)       6,639         1.6          48   12.2-21.5         0.8           0     25.7-35          <1
bottlenose dolphin................  (S. migratory stock)       3,751         0.2          23   0 to 18.3         0.8           0    3.9-22.2     <7.8-70
Harbor porpoise...................  GoM/Bay of Fundy....      95,543         1.4         851         217         0.2           0       633.8        0.22
Harbor seal.......................  W. North Atlantic...      75,834           5       2,006         350         0.2           0       1,656        0.30
Gray seal.........................  ....................      27,131           5       1,389      47,296         0.2           0     -45,907  ..........
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All but one stocks that may potentially be taken by M/SI fall below 
the insignificance threshold (i.e., 10 percent of residual PBR). The 
annual proposed take of grey seals is above the insignificance 
threshold.

Stocks With M/SI Below the Insignificance Threshold

    As noted above, for a species or stock with incidental M/SI less 
than 10 percent of residual PBR, we consider M/SI from the specified 
activities to represent an insignificant incremental increase in 
ongoing anthropogenic M/SI that alone (i.e., in the absence of any 
other take and barring any other unusual circumstances) will clearly 
not adversely affect annual rates of recruitment and survival. In this 
case, as shown in Table 19, the following species or stocks have 
proposed M/SI from NEFSC fisheries research below their insignificance 
threshold: Minke whale (Canadian east coast); Risso's dolphin; the 
Western North Atlantic stocks of Atlantic white-sided dolphin; White-
beaked common dolphin; Short-beaked common dolphin; Atlantic spotted 
dolphin; bottlenose dolphin (offshore and Northern migratory); harbor 
porpoise (Gulf of Marine/Bay of Fundy), and harbor seal (Western North 
Atlantic).
    For these stocks with authorized M/SI below the insignificance 
threshold, there are no other known factors, information, or unusual 
circumstances that indicate anticipated M/SI below the insignificance 
threshold could have adverse effects on annual rates of recruitment or 
survival and they are not discussed further.

Stocks With M/SI Above the Insignificance Threshold

    There is one stock for which we propose to authorize take where the 
annual rate of M/SI is above the 10 percent insignificance threshold: 
The western North Atlantic stock of gray seals. For this species, we 
explain below why we have preliminarily determined the proposed take is 
not expected or likely to adversely affect the species or stock through 
effects on annual rates of recruitment or survival.
    At first glance, the annual rate of mortality of gray seals exceeds 
PBR in absence of any authorized take proposed here or in other LOAs. 
However, the size of population reported in the SAR (and consequently 
the PBR value) is estimated separately for the portion of the 
population in Canada versus the U.S., and mainly reflects the size of 
the breeding population in each respective country. However, the annual 
estimated human-caused mortality and serious injury values in the SAR 
reflects both U.S. and Canada M/SI. For the period 2014-2018, the 
average annual estimated human-caused mortality and serious injury to 
gray seals in the U.S. and Canada was 4,729 (953 U.S./3,776 Canada) per 
year. Therefore, The U.S. portion of 2013-2017 average annual human-
caused mortality and serious injury during 2014-2018 in U.S. waters 
does not exceed the portion of PBR in of the U.S. waters portion of the 
stocks but is still high (approximately 68 percent of PBR).
    In U.S. waters, the number of pupping sites has increased from 1 in 
1988 to 9 in 2019, and are located in Maine and Massachusetts (Wood et 
al. 2019). Mean rates of increase in the number of pups born at various 
times since 1988 at 4 of the more frequently surveyed pupping sites 
(Muskeget, Monomoy, Seal, and Green Islands) ranged from -0.2 percent 
(95% CI: -2.3-1.9%) to 26.3 percent (95% CI: 21.6-31.4%) (Wood et al. 
2019). These high rates of increase provide further support that seals 
from other areas are continually supplementing the breeding population 
in U.S. waters. From 1988-2019, the estimated mean rate of increase in 
the number of pups born was 12.8 percent on Muskeget Island, 26.3 
percent on Monomoy Island, 11.5 percent on Seal Island, and -0.2 
percent on Green Island (Wood et al. 2019). These rates only reflect 
new recruits to the population and do not reflect changes in total 
population growth resulting from Canadian seals migrating to the 
region. Overall, the total population of gray seals in Canada was 
estimated to be increasing by 4.4 percent per year from 1960-2016 
(Hammill et al. 2017). The status of the gray seal population relative 
to OSP in U.S. Atlantic EEZ waters is unknown, but the stock's 
abundance appears to be increasing in both Canadian and U.S. waters. 
For these reasons, the issuance of the proposed M/SI take is not likely 
to affect annual rates of recruitment of survival.

Acoustic Effects

    As described in greater depth previously, the NEFSC's use of active 
acoustic sources has the likely potential to result in no greater than 
Level B (behavioral) harassment of marine mammals. Level A harassment 
is not an anticipated outcome of exposure, and we are not proposing to 
authorize it. Marine mammals are expected to have short-term, minor 
behavioral reactions to exposure such as moving away from the source. 
Some marine mammals (e.g.,

[[Page 30123]]

delphinids) may choose to bow ride the source vessel; in which case 
exposure is expected to have no effect on behavior. For the majority of 
species, the amount of proposed annual take by Level B harassment is 
very low (less than 1 percent) in relation to the population abundance 
estimate. For stocks above 1 percent (n=3), the amount of proposed 
annual take by Level B harassment is less than 12 percent.
    We have produced what we believe to be conservative estimates of 
potential incidents of Level B harassment. The procedure for producing 
these estimates, described in detail in the notice of proposed 
rulemaking for the initial LOA (80 FR 39542, July 9, 2015) and 
summarized earlier in the Estimated Take Due to Acoustic Harassment 
section, represents NMFS' best effort towards balancing the need to 
quantify the potential for occurrence of Level B harassment due to 
production of underwater sound with a general lack of information 
related to the specific way that these acoustic signals, which are 
generally highly directional and transient, interact with the physical 
environment and to a meaningful understanding of marine mammal 
perception of these signals and occurrence in the areas where the NEFSC 
operates. The sources considered here have moderate to high output 
frequencies (10 to 200 kHz), generally short ping durations, and are 
typically focused (highly directional) to serve their intended purpose 
of mapping specific objects, depths, or environmental features. In 
addition, some of these sources can be operated in different output 
modes (e.g., energy can be distributed among multiple output beams) 
that may lessen the likelihood of perception by and potential impacts 
on marine mammals in comparison with the quantitative estimates that 
guide our take authorization.
    In particular, low-frequency hearing specialists (i.e., mysticetes) 
are less likely to perceive or, given perception, to react to these 
signals. As described previously, NEFSC determined that the EK60, ME 
70, and DSM 300 sources comprise the total effective exposures relative 
to line-kilometers surveyed. Acoustic disturbance takes are calculated 
for these three dominant sources. Of these dominant acoustic sources, 
only the EK 60 can use a frequency within the hearing range of baleen 
whales (18k Hz). Therefore, Level B harassment of baleen whales is only 
expected for exposure to the EK60. The other two dominant sources are 
outside of their hearing range. There is some minimal potential for 
temporary effects to hearing for certain marine mammals, but most 
effects would likely be limited to temporary behavioral disturbance. 
Effects on individuals that are taken by Level B harassment will likely 
be limited to reactions such as increased swimming speeds, increased 
surfacing time, or decreased foraging (if such activity were 
occurring), reactions that are considered to be of low severity (e.g., 
Southall et al., 2007). There is the potential for behavioral reactions 
of greater severity, including displacement, but because of the 
directional nature of the sources considered here and because the 
source is itself moving, these outcomes are unlikely and would be of 
short duration if they did occur. 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 NEFSC survey effort is widely dispersed in space and time, 
indicate that repeated exposures of the same individuals would be 
unlikely. The acoustic sources proposed to be used by NEFSC are 
generally of low source level, higher frequency, and narrow beamwidth. 
As described previously, there is some minimal potential for temporary 
effects to hearing for certain marine mammals, but most effects would 
likely be limited to temporary behavioral disturbance. Effects on 
individuals that are taken by Level B harassment will likely be limited 
to reactions such as increased swimming speeds, increased surfacing 
time, or decreased foraging (if such activity were occurring), 
reactions that are considered to be of low severity (e.g., Ellison et 
al., 2012). Individuals may move away from the source if disturbed; 
however, 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. The areas ensonified above the 
Level B harassment threshold during NEFSC surveys are extremely small 
relative to the overall survey areas. 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 NEFSC survey effort is widely dispersed in space and time, 
indicate that repeated exposures of the same individuals would be very 
unlikely. The short term, minor behavioral responses that may occur 
incidental to NEFSC use of acoustic sources, are not expected to result 
in impacts the reproduction or survival of any individuals, much less 
have an adverse impact on the population.
    Similarly, disturbance of pinnipeds by researchers are expected to 
be infrequent and cause only a temporary disturbance on the order of 
minutes. This level of periodic incidental harassment would have 
temporary effects and would not be expected to alter the continued use 
of the tidal ledges by seals. Anecdotal reports from previous 
monitoring show that the pinnipeds returned to the various sites and 
did not permanently abandon haulout sites after the NEFSC conducted 
their research activities. 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. Therefore, the NEFSC activity cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect species 
or stocks through effects on annual rates of recruitment or survival.

Conclusions

    In summary, as described in the Serious Injury and Mortality 
section, the proposed takes by serious injury or mortality from NEFSC 
activities, alone, are unlikely to adversely affect any species or 
stock through effects on annual rates of recruitment or survival. 
Further, the low severity and magnitude of expected Level B harassment 
is not predicted to affect the reproduction or survival of any 
individual marine mammals, much less the rates of recruitment or 
survival of any species or stock. Therefore, the authorized Level B 
harassment, alone or in combination with the M/SI authorized for some 
species or stocks, will result in a negligible impact on the effected 
stocks and species.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

[[Page 30124]]

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness 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. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    Please see Table 18 for information relating to this small numbers 
analysis. The total amount of taking proposed for authorization is less 
than one percent for a majority of stocks, and no more than 12 percent 
for any given stock.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by the issuance of regulations to 
the NEFSC. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults whenever we propose to authorize take for endangered or 
threatened species, in this case with the Greater Atlantic Regional 
Fisheries Office (GARFO).
    NMFS is proposing to authorize take, by Level B harassment only of 
North Atlantic right, fin, sei, blue and sperm whales, which are listed 
under the ESA. Therefore, OPR has requested initiation of Section 7 
consultation with the GARFO for the issuance of this IHA. NMFS will 
conclude the ESA consultation prior to reaching a determination 
regarding the proposed issuance of the authorization.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
NEFSC fisheries research survey operations would contain an adaptive 
management component. The inclusion of an adaptive management component 
will be both valuable and necessary within the context of five-year 
regulations for activities that have been associated with marine mammal 
mortality.
    The reporting requirements associated with this proposed rule are 
designed to provide OPR with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. OPR and the 
NEFSC 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 
NEFSC 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 research 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.

Request for Information

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

Classification

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

List of Subjects in 50 CFR Part 219

    Endangered and threatened species, Fish, Marine mammals, Reporting 
and recordkeeping requirements, Wildlife.

    Dated: May 21, 2021.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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

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

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


[[Page 30125]]


0
2. Amend Subpart D to part 219 to read as follows:
Subpart D--Taking Marine Mammals Incidental to Northeast Fisheries 
Science Center Fisheries Research in the Atlantic Coast Region
Sec.
219.31 Specified activity and specified geographical region.
219.32 Effective dates.
219.33 Permissible methods of taking.
219.34 Prohibitions.
219.35 Mitigation requirements.
219.36 Requirements for monitoring and reporting.
219.37 Letters of Authorization.
219.38 Renewals and modifications of Letters of Authorization.
219.39 [Reserved]
219.40 [Reserved]

Subpart D--Taking Marine Mammals Incidental to Northeast Fisheries 
Science Center Fisheries Research in the Atlantic Coast Region


Sec.  219.31  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Northeast Fisheries Science Center and those 
persons it authorizes or funds to conduct activities in the area 
outlined in paragraph (b) of this section during research survey 
program operations.
    (b) The incidental taking of marine mammals by Northeast Fisheries 
Science Center may be authorized in a Letter of Authorization (LOA) 
only if it occurs within the Northeast and Southeast Large Marine 
Ecosystem.


Sec.  219.32  Effective dates.

    Regulations in this subpart are effective from September 10, 2021 
through September 9, 2026.


Sec.  219.33  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. Sec.  216.106 of this 
chapter and 219.37, the Holder of the LOA (hereinafter ``NEFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  219.31(b) of this chapter 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 trawl, dredge, bottom and 
pelagic longline, gillnet, pot and trap, and fyke net gears, provided 
the activity is in compliance with all terms, conditions, and 
requirements of the regulations in this subpart and the appropriate 
LOA, provided the activity is in compliance with all terms, conditions, 
and requirements of the regulations in this subpart and the appropriate 
LOA.


Sec.  219.34  Prohibitions.

    Except for takings contemplated in Sec.  219.33 and authorized by a 
LOA issued under Sec. Sec.  216.106 of this chapter and 219.37, it 
shall be unlawful for any person to do any of the following in 
connection with the activities described in Sec.  219.31:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
of this chapter and 219.37;
    (b) Take any marine mammal not specified in such LOA;
    (c) Take any marine mammal specified in such LOA in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  219.35  Mitigation requirements.

    When conducting the activities identified in Sec.  219.31(a), the 
mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 219.37 must be implemented. These 
mitigation measures must include but are not limited to:
    (a) General conditions:
    (1) NEFSC 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) NEFSC must coordinate and conduct briefings at the outset of 
each survey and as necessary between the ship's crew (Commanding 
Officer/master or designee(s), contracted vessel owners, as 
appropriate) and scientific party or in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures;
    (3) NEFSC 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, NEFSC 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) All vessels must comply with applicable and relevant take 
reduction plans, including any required use of acoustic deterrent 
devices;
    (6) If a NEFSC vessel 65 ft or longer is traveling within a North 
Atlantic right whale Seasonal Management Area, the vessel shall not 
exceed 10 knots in speed. When practicable, all NEFSC vessels traveling 
within a Dynamic Management Area shall not exceed 10 knots in speed;
    (7) All NEFSC vessels shall maintain a separation distance of 500 m 
and 100 m from a North Atlantic right whale and other large whales, 
respectively;
    (8) If a North Atlantic right whale is observed at any time during 
NEFSC research activities, NEFSC must immediately report sighting 
information to NMFS (866-755-6622), the U.S. Coast Guard via channel 16 
and through the WhaleAlert app (http://www.whalealert.org/);
    (9) NEFSC must implement handling and/or disentanglement protocols 
as specified in the guidance provided to NEFSC survey personnel; and
    (10) In the case of a bottlenose dolphin entanglement resulting in 
mortality and stock origin is unknown, the NEFSC must request and 
arrange for expedited genetic sampling for stock determination and 
photograph the dorsal fin and submit the image to the NMFS Regional 
Marine Mammal Stranding Coordinator for identification/matching to 
bottlenose dolphins in the Bottlenose Dolphin Photo-identification 
Catalog.
    (b) Trawl survey protocols:
    (1) NEFSC must conduct trawl operations as soon as is practicable 
upon arrival at the sampling station;
    (2) NEFSC must initiate marine mammal watches (visual observation) 
15 minutes prior to sampling within 1 km of the site. Marine mammal 
watches must be conducted by scanning the surrounding waters with the 
naked eye and binoculars (or monocular). During nighttime operations, 
visual observation will be conducted using the naked eye and available 
vessel lighting;
    (3) NEFSC must implement the following ``move-on rule.'' If a 
marine mammal is sighted within 1 nautical mile (nm) of the planned 
location in the 15 minutes before gear deployment,

[[Page 30126]]

NEFSC must move the vessel away from the marine mammal to a different 
section of the sampling area if the animal appears to be at risk of 
interaction with the gear based on best professional judgement. If, 
after moving on, marine mammals are still visible from the vessel, 
NEFSC may decide to move again or to skip the station;
    (4) NEFSC 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, NEFSC must take the 
most appropriate action to avoid marine mammal interaction;
    (5) If trawling operations have been suspended because of the 
presence of marine mammals, NEFSC may resume only after there are no 
sightings for 15 minutes within 1nm of sampling location;
    (6) NEFSC must implement standard survey protocols to minimize 
potential for marine mammal interaction, including minimum tow 
durations at target depth and minimum tow distance, and must carefully 
empty the trawl as quickly as possible upon retrieval; and
    (7) Trawl nets must be cleaned prior to deployment.
    (c) Dredge survey protocols:
    (1) NEFSC must deploy dredge gear as soon as is practicable upon 
arrival at the sampling station;
    (2) NEFSC must initiate marine mammal watches (visual observation) 
prior to sampling. Marine mammal watches must be conducted by scanning 
the surrounding waters with the naked eye and binoculars (or 
monocular). During nighttime operations, visual observation must be 
conducted using the naked eye and available vessel lighting;
    (3) NEFSC must implement the following ``move-on rule.'' If marine 
mammals are sighted within 1 nautical mile (nm) of the planned location 
in the 15 minutes before gear deployment, the NEFSC may decide to move 
the vessel away from the marine mammal to a different section of the 
sampling area if the animal appears to be at risk of interaction with 
the gear, based on best professional judgement. If, after moving on, 
marine mammals are still visible from the vessel, NEFSC may decide to 
move again or to skip the station;
    (4) NEFSC must maintain visual monitoring effort during the entire 
period of time that dredge 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, NEFSC must take the 
most appropriate action to avoid marine mammal interaction. NEFSC may 
use best professional judgment in making this decision;
    (5) If dredging operations have been suspended because of the 
presence of marine mammals, NEFSC may resume operations when 
practicable only when the animals are believed to have departed the 
area or after 15 minutes of no sightings. NEFSC may use best 
professional judgment in making this determination; and
    (6) NEFSC must carefully empty the dredge gear as quickly as 
possible upon retrieval to determine if marine mammals are present in 
the gear.
    (d) Bottom and pelagic longline survey protocols:
    (1) NEFSC must deploy longline gear as soon as is practicable upon 
arrival at the sampling station;
    (2) NEFSC must initiate marine mammal watches (visual observation) 
no less than fifteen minutes prior to both deployment and retrieval of 
the longline gear. Marine mammal watches must be conducted by scanning 
the surrounding waters with the naked eye and binoculars (or 
monocular). During nighttime operations, visual observation must be 
conducted using the naked eye and available vessel lighting;
    (3) NEFSC must implement the following ``move-on rule.'' If marine 
mammals are sighted within 1 nautical mile (nmi) of the planned 
location in the 15 minutes before gear deployment, the NEFSC may decide 
to move the vessel away from the marine mammal to a different section 
of the sampling area if the animal appears to be at risk of interaction 
with the gear, based on best professional judgement. If, after moving 
on, marine mammals are still visible from the vessel, NEFSC may decide 
to move again or to skip the station;
    (4) For the Apex Predators Bottom Longline Coastal Shark Survey, if 
one or more marine mammals are observed within 1 nautical mile (nm) of 
the planned location in the 15 minutes before gear deployment, NEFSC 
must transit to a different section of the sampling area to maintain a 
minimum set distance of 1 nmi from the observed marine mammals. If, 
after moving on, marine mammals remain within 1 nmi, NEFSC may decide 
to move again or to skip the station. NEFSC may use best professional 
judgment in making this decision but may not elect to conduct pelagic 
longline survey activity when animals remain within the 1-nmi zone;
    (5) NEFSC must maintain visual monitoring effort during the entire 
period of gear deployment or retrieval. If marine mammals are sighted 
before the gear is fully deployed or retrieved, NEFSC must take the 
most appropriate action to avoid marine mammal interaction. NEFSC may 
use best professional judgment in making this decision;
    (6) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, NEFSC may resume such 
operations after there are no sightings of marine mammals for at least 
15 minutes within the area or within the 1-nm area for the Apex 
Predators Bottom Longline Coastal Shark Survey. NEFSC may use best 
professional judgment in making this decision; and
    (7) NEFSC must implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming.
    (e) Gillnet survey protocols:
    (1) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must deploy gillnet gear as 
soon as is practicable upon arrival at the sampling station;
    (2) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must initiate marine mammal 
watches (visual observation) prior to both deployment and retrieval of 
the gillnet gear. When the vessel is on station during the soak, marine 
mammal watches must be conducted during the soak by scanning the 
surrounding waters with the naked eye and binoculars (or monocular);
    (3) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must implement the following 
``move-on rule.'' If marine mammals are sighted within 1 nmi of the 
planned location in the 15 minutes before gear deployment, the NEFSC 
and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains, may decide to move the vessel away from 
the marine mammal to a different section of the sampling area if the 
animal appears to be at risk of interaction with the gear based on best 
professional judgement. If, after moving on, marine mammals are still 
visible from the vessel, the NEFSC and/or its cooperating institutions, 
contracted vessels, or commercially-hired captains may decide to move 
again or to skip the station;
    (4) If marine mammals are sighted near the vessel during the soak 
and are determined to be at risk of interacting with the gear, then the 
NEFSC and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains must carefully retrieve the gear as quickly 
as possible. The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains

[[Page 30127]]

may use best professional judgment in making this decision;
    (5) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must implement standard survey 
protocols, including continuously monitoring the gillnet gear during 
soak time and removing debris with each pass as the net is reset into 
the water to minimize bycatch;
    (6) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must ensure that surveys deploy 
acoustic pingers on gillnets in areas where required for commercial 
fisheries. NEFSC must ensure that the devices are operating properly 
before deploying the net;
    (7) NEFSC must ensure that cooperating institutions, contracted 
vessels, or commercially-hired captains conducting gillnet surveys 
adhere to monitoring and mitigation requirements and must include 
required protocols in all survey instructions, contracts, and 
agreements;
    (8) For the COASTSPAN gillnet surveys, the NEFSC will actively 
monitor for potential bottlenose dolphin entanglements by hand-checking 
the gillnet every 30 minutes; and
    (9) NEFSC will set only new or fully repaired gill nets, and modify 
nets to avoid large vertical gaps between float line and net as well as 
lead line and net when set.
    (f) Pot and trap survey protocols:
    (1) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must deploy pot gear as soon as 
is practicable upon arrival at the sampling station;
    (2) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must initiate marine mammal 
watches (visual observation) no less than 30 minutes prior to both 
deployment and retrieval of the pot and trap gear. Marine mammal 
watches must be conducted by scanning the surrounding waters with the 
naked eye and binoculars (or monocular). During nighttime operations, 
visual observation must be conducted using the naked eye and available 
vessel lighting;
    (3) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must implement the following 
``move-on'' rule. If marine mammals are sighted within 1 nmi of the 
planned location in the 15 minutes before gear deployment, the NEFSC 
and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains, as appropriate, may decide to move the 
vessel away from the marine mammal to a different section of the 
sampling area if the animal appears to be at risk of interaction with 
the gear, based on best professional judgement. If, after moving on, 
marine mammals are still visible from the vessel, the NEFSC, and/or its 
cooperating institutions, contracted vessels, or commercially-hired 
captains may decide to move again or to skip the station;
    (4) If marine mammals are sighted near the vessel during the soak 
and are determined to be at risk of interacting with the gear, then the 
NEFSC and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains must carefully retrieve the gear as quickly 
as possible. The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains may use best professional 
judgment in making this decision;
    (5) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must ensure that surveys deploy 
gear fulfilling all Pot/Trap universal commercial gear configurations 
such as weak link requirements and marking requirements as specified by 
applicable take reduction plans as required for commercial pot/trap 
fisheries; and
    (6) The NEFSC must ensure that its cooperating institutions, 
contracted vessels, or commercially-hired captains conducting pot and 
trap surveys adhere to monitoring and mitigation requirements and must 
include required protocols in all survey instructions, contracts, and 
agreements.
    (g) Fyke net gear protocols:
    (1) NEFSC must conduct fyke net gear deployment as soon as is 
practicable upon arrival at the sampling station;
    (2) NEFSC must visually survey the area prior to both deployment 
and retrieval of the fyke net gear. NEFSC must conduct monitoring and 
retrieval of the gear every 12- to 24-hour soak period;
    (3) If marine mammals are in close proximity (approximately 328 
feet [100 meters]) of the set location, NEFSC must determine if the net 
should be removed from the water and the set location should be moved 
using best professional judgment;
    (4) If marine mammals are observed to interact with the gear during 
the setting, NEFSC must remove the gear from the water and implement 
best handling practices; and
    (5) NEFSC must install and use a marine mammal excluder device at 
all times when the 2-meter fyke net is used.
    (h) Rotary screw trap gear protocols:
    (1) NEFSC must conduct rotary screw trap deployment as soon as is 
practicable upon arrival at the sampling station;
    (2) NEFSC must visually survey the area prior to both setting and 
retrieval of the rotary screw trap gear. If marine mammals are observed 
in the sampling area, NEFSC must suspend or delay the sampling. NEFSC 
may use best professional judgment in making this decision;
    (3) NEFSC must tend to the trap on a daily basis to monitor for 
marine mammal interactions with the gear; and
    (4) If the rotary screw trap captures a marine mammal, NEFSC must 
remove gear and and implement best handling practices.


Sec.  219.36  Requirements for monitoring and reporting.

    (a) Compliance coordinator--NEFSC shall designate a compliance 
coordinator who shall be responsible for ensuring compliance with all 
requirements of any LOA issued pursuant to Sec.  216.106 of this 
chapter and Sec.  219.7 and for preparing for any subsequent request(s) 
for incidental take authorization.
    (b) Visual monitoring program:
    (1) Marine mammal visual monitoring must occur: Prior to deployment 
of beam, mid-water, and bottom trawl, bottom and pelagic longline, 
gillnet, fyke net, pot, trap, and rotary screw trap gear; throughout 
deployment of gear and active fishing of all research gears; 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) NEFSC must monitor any potential disturbance of pinnipeds on 
ledges, paying particular attention to the distance at which different 
species of pinniped are disturbed. Disturbance must be recorded 
according to a three-point scale of response to disturbance; and
    (4) The NEFSC must continue to conduct a local census of pinniped 
haulout areas prior to conducting any fisheries research in the 
Penobscot River estuary. The NEFSC's census reports must include an 
accounting of disturbance based on the three-point scale of response 
severity metrics.
    (c) Training:
    (1) NEFSC must conduct annual training for all chief scientists and 
other personnel (including its cooperating institutions, contracted 
vessels, or commercially-hired captains) who may be responsible for 
conducting dedicated marine mammal visual observations to explain 
mitigation measures and monitoring and reporting requirements,

[[Page 30128]]

mitigation and monitoring protocols, marine mammal identification, 
completion of datasheets, and use of equipment. NEFSC may determine the 
agenda for these trainings;
    (2) NEFSC 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; 
and
    (3) NEFSC must coordinate with NMFS' Southeast Fisheries Science 
Center (SEFSC) regarding surveys conducted in the southern portion of 
the Atlantic coast region, such that training and guidance related to 
handling procedures and data collection is consistent.
    (d) Handling procedures and data collection:
    (1) NEFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard procedures will be subject to approval by NMFS Office of 
Protected Resources (OPR);
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, NEFSC must collect necessary data to 
facilitate a serious injury determination;
    (3) NEFSC must provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring/or not bring an individual 
aboard a vessel, assess the level of consciousness, remove fishing 
gear, return an individual to water, and log activities pertaining to 
the interaction; and
    (4) NEFSC must record such data on standardized forms, which will 
be subject to approval by OPR. The data must be collected at a 
sufficient level of detail (e.g., circumstances leading to the 
interaction, extent of injury, condition upon release) to facilitate 
serious injury determinations under the MMPA.
    (e) Reporting:
    (1) NEFSC must report all incidents of marine mammal interaction to 
NMFS' Protected Species Incidental Take database within 48 hours of 
occurrence; and
    (2) NEFSC must provide written reports to OPR upon request 
following any marine mammal interaction (animal captured or entangled 
in research gear). In the event of a marine mammal interaction, these 
reports 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.
    (3) The NEFSC must submit annual reports.
    (i) The period of reporting will be one year beginning at the date 
of issuance of the LOA. NEFSC must submit an annual summary report to 
OPR not later than ninety days following the end of the reporting 
period.
    (ii) These reports must contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
DSM300 (or equivalent sources) were predominant;
    (B) Summary information regarding use of the following: All trawl 
gear, all longline gear, all gillnet gear, all dredge gear, fyke net 
gear, and rotary screw trap gear (including number of sets, hook hours, 
tows, and tending frequency specific to each gear type);
    (C) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why;
    (D) Summary information from the pinniped haulout censuses in the 
and summary information related to any disturbance of pinnipeds, 
including event-specific total counts of animals present, counts of 
reactions according to a three-point scale of response severity, and 
distance of closest approach;
    (E) A written evaluation of the effectiveness of NEFSC 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 the NEFSC and 
any coordination with the NMFS Southeast Fishery Science Center, the 
Greater Atlantic Regional Fisheries Office, and the Southeast 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, 
NEFSC must report the incident to OPR and to the appropriate Northeast 
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, SEFSC must 
report the incident to OPR and to the appropriate Northeast 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.  219.37  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, NEFSC 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, NEFSC may apply for and obtain a renewal of the LOA.

[[Page 30129]]

    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, NEFSC must apply 
for and obtain a modification of the LOA as described in Sec.  219.38.
    (e) The LOA must 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 must 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 must be published in the 
Federal Register within thirty days of a determination.


Sec.  219.38  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
219.37 for the activity identified in Sec.  219.31(a) must be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section); and
    (2) OPR determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in 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 
219.37 for the activity identified in Sec.  219.31(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 NEFSC 
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 NEFSC's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) 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 Sec.  219.32(b), an LOA may be modified without 
prior notice or opportunity for public comment. Notice would be 
published in the Federal Register within thirty days of the action.


Sec.  219.39-219.40   [Reserved]

[FR Doc. 2021-11188 Filed 6-3-21; 8:45 am]
BILLING CODE 3510-22-P