[Federal Register Volume 90, Number 94 (Friday, May 16, 2025)]
[Rules and Regulations]
[Pages 21134-21179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-08349]
[[Page 21133]]
Vol. 90
Friday,
No. 94
May 16, 2025
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 219
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to Pacific Islands Fisheries Science Center Fisheries Research; Direct-
Interim-Final Rule
Federal Register / Vol. 90, No. 94 / Friday, May 16, 2025 / Rules and
Regulations
[[Page 21134]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 219
[Docket No. 250505-0076]
RIN 0648-BG31
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Pacific Islands Fisheries Science Center Fisheries
Research
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notice of issuance of letter of authorization.
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SUMMARY: NMFS' Office of Protected Resources (OPR), upon request from
NMFS' Pacific Islands Fisheries Science Center (PIFSC), hereby issues
regulations to govern the unintentional taking of marine mammals
incidental to fisheries research conducted in multiple specified
geographical regions over the course of 5 years. These regulations,
which allow for the issuance of Letters of Authorization (LOAs) for the
incidental take of marine mammals during the described activities and
specified timeframes, prescribe the permissible methods of taking and
other means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, as well as requirements
pertaining to the monitoring and reporting of such taking. Upon
publication of this final rule, NMFS will issue an LOA to PIFSC for the
effective period of the final rule.
DATES: Effective May 16, 2025, the sunset date of January 15, 2026, for
part 219 added at 86 FR 3868, Jan. 15, 2021, is removed. This rule is
effective as of May 16, 2025, except for amendatory instruction 4,
which is effective from May 16, 2025 through May 15, 2030.
ADDRESSES: A copy of PIFSC's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research. In
case of problems accessing these documents, please call the contact
listed below.
FOR FURTHER INFORMATION CONTACT: Benjamin Laws, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of PIFSC's application and any supporting documents, as well
as a list of the references cited in this document, may be obtained
online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research. In
case of problems accessing these documents, please call the contact
listed above (see FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory Action
These regulations establish a framework under the authority of the
Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.) to allow
for the authorization of take of marine mammals incidental to the
PIFSC's fisheries research activities in the Hawaiian Archipelago,
Mariana Archipelago, American Samoa Archipelago, and Western and
Central Pacific Ocean.
We received an application from the PIFSC requesting 5-year
regulations and an LOA to take multiple species of marine mammals. Take
would occur by Level B harassment incidental to the use of active
acoustic devices, as well as by visual disturbance of pinnipeds, and by
Level A harassment, serious injury, or mortality incidental to the use
of fisheries research gear. Please see Background below for definitions
of harassment.
Legal Authority for the Final 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 5 years if,
after notice and public comment, the agency makes certain findings and
issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Mitigation section), as
well as monitoring and reporting requirements. Section 101(a)(5)(A) of
the MMPA and the implementing regulations at 50 CFR part 216, subpart
I, provide the legal basis for issuing this rule containing 5-year
regulations, and for any subsequent LOAs. As directed by this legal
authority, this rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Regulations
Following is a summary of the major provisions of this final rule
regarding PIFSC fisheries research activities. These measures include,
but are not limited to:
Monitoring the sampling areas to detect the presence of
marine mammals before and during deployment of certain research gear;
Delaying setting or haul in gear if marine mammal
interaction may occur;
Hauling gear immediately if marine mammals may interact
with gear; and
Implementing the mitigation strategy known as the ``move-
on rule,'' which incorporates best professional judgment, when
necessary during certain research fishing operations.
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and set forth requirements pertaining to the
mitigation, monitoring and reporting of the takings. The definitions of
all applicable MMPA statutory terms cited above are included in the
relevant sections below.
Summary of Request
On November 30, 2015, we received an adequate and complete
application
[[Page 21135]]
from PIFSC requesting authorization to take small numbers of marine
mammals incidental to fisheries research activities. On December 7,
2015 (80 FR 75997), we published a notice of receipt of PIFSC's
application in the Federal Register, requesting comments and
information related to the PIFSC request. The public comment period was
open for 30 days, from December 7, 2015, through January 1, 2016. We
received joint comments from The Humane Society of the United States
and Whale and Dolphin Conservation (HSUS/WDC). These comments were
considered in development of the proposed rule and are available online
at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research.
In accordance with the MMPA, we published a notice of proposed
rulemaking in the Federal Register on March 22, 2021 (86 FR 15298), and
requested comments and information from the public. The public comment
period was open for thirty days, from March 22, 2021, through April 21,
2021. We did not receive any comments on the proposed rule.
As explained below, subsequent to the publication of the proposed
rule, PIFSC advised NMFS of an additional research program that was not
identified in the proposed rule. Despite the time that has elapsed
since the PIFSC's application was initially received and publication of
the proposed rule and although the additional research program was not
identified in the proposed rule, we believe it is unnecessary to engage
in another round of notice and comments because the description of the
specified activity that can be expected to result in incidental take of
marine mammals, the type of incidental take authorization that is being
requested, the method of incidental take, and the anticipated impact of
the activity on the species or stock of marine mammals remains
unchanged. Further, new science and information necessary to evaluate
this application that has become available since the PIFSC submitted
their application has been considered and is addressed in this rule.
NMFS has reviewed newly available information since publication of the
proposed rule for comment, including updated SARs and scientific
literature, and determined that there is no new information that would
warrant new solicitation of public comment.
PIFSC plans to conduct fisheries research using trawl gear used at
various levels in the water column, hook-and-line gear (including
longlines with multiple hooks, bottomfishing, and trolling), and
deployed instruments (including various traps). If a marine mammal
interacts with gear deployed by PIFSC, the outcome could potentially be
Level A harassment, serious injury (i.e., any injury that will likely
result in mortality), or mortality. Although any given gear interaction
could result in an outcome less severe than mortality or serious
injury, we do not have sufficient information to allow parsing these
potential outcomes. Therefore, PIFSC presents a pooled estimate of the
number of potential incidents of gear interaction and, for analytical
purposes we assume that gear interactions would result in serious
injury or mortality. PIFSC also uses various active acoustic devices
while conducting fisheries research, and use of some of these devices
has the potential to result in Level B harassment of marine mammals.
Level B harassment of pinnipeds hauled out may also occur, as a result
of visual disturbance from vessels conducting PIFSC research.
The LOA issued under this final rule authorizes take of small
numbers of marine mammals of 15 species by serious injury or mortality
(hereafter referred to as M/SI) or Level A harassment incidental to
gear interactions, and of 20 species by Level B harassment incidental
to use of active acoustic devices and vessel operation during fisheries
and ecosystem research.
Description of the Specified Activity
Overview
The Federal Government has a responsibility to conserve and protect
living marine resources in U.S. waters and has also entered into a
number of international agreements and treaties related to the
management of living marine resources in international waters outside
the United States. NOAA has the primary responsibility for managing
marine finfish and shellfish species and their habitats, with that
responsibility delegated within NOAA to NMFS.
In order to direct and coordinate the collection of scientific
information needed to make informed fishery management decisions,
Congress created six regional fisheries science centers, each a
distinct organizational entity and the scientific focal point within
NMFS for region-based Federal fisheries-related research. This research
is aimed at monitoring fish stock recruitment, abundance, survival and
biological rates, geographic distribution of species and stocks,
ecosystem process changes, and marine ecological research. The PIFSC is
the research arm of NMFS in the Pacific Islands region of the United
States. The PIFSC conducts research and provides scientific advice to
manage fisheries and conserve protected species in the geographic
research area described below and provides scientific information to
support the Western Pacific Fishery Management Council and other
domestic and international fisheries management organizations.
The PIFSC collects a wide array of information necessary to
evaluate the status of exploited fishery resources and the marine
environment. PIFSC scientists conduct fishery-independent research
onboard NOAA-owned and operated vessels or on chartered vessels. Such
research may also be conducted by cooperating scientists on non-NOAA
vessels when the PIFSC helps fund the research. The PIFSC plans to
administer and conduct multiple survey programs over the 5-year period,
within 4 separate research areas (some survey programs are conducted
across more than 1 research area; see table 1-1 in PIFSC's
application). Surveys identified and described here are a
representative but not necessarily exclusive list of the research that
PIFSC may undertake during the period for which this authorization will
be valid. The gear types used fall into several categories: towed trawl
nets fished at various levels in the water column, hook-and-line gear
(including longlines with multiple hooks, bottomfishing, and trolling),
deployed instruments (including various traps), and other instruments.
Only use of trawl nets, longlines, and deployed instruments are likely
to result in interaction with marine mammals via entanglement or
hooking. Many of these surveys also use active acoustic devices that
may result in Level B harassment.
Dates and Duration
The specified activity may occur at any time during the 5-year
period of validity of the regulations. Dates and duration of individual
surveys are inherently uncertain, based on congressional funding levels
for the PIFSC, weather conditions, or ship contingencies. In addition,
cooperative research is designed to provide flexibility on a yearly
basis in order to address issues as they arise. Some cooperative
research projects last multiple years or may continue with
modifications. Other projects only last 1 year and are not continued.
Most cooperative research projects go through an annual competitive
selection process to determine which projects should be funded based on
proposals developed by many independent researchers and fishing
industry participants. PIFSC survey activity occurs during most
[[Page 21136]]
months of the year. Trawl surveys occur primarily during May through
June and September but may occur during any month, and hook-and-line
surveys generally occur during fall.
Specified Geographical Region
The PIFSC conducts research in the Pacific Islands within four
research areas: the Hawaiian Archipelago Research Area (HARA), the
Mariana Archipelago Research Area (MARA), the American Samoa
Archipelago Research Area (ASARA), and the Western and Central Pacific
Research Area (WCPRA). The first three research areas are considered to
extend approximately 24 nautical miles (nmi; 44.5 kilometers (km)) from
the baseline of the respective archipelagos (i.e., approximately the
outer limit of the contiguous zone). The WCPRA is considered to include
the remainder of archipelagic U.S. exclusive economic zone (EEZ)
waters, the high seas between the archipelagic U.S. EEZ waters, and
waters around the Pacific remote islands. Please see figures 1.2 and
2.1 through 2.4 in the PIFSC application for maps of the four research
areas. Detailed descriptions of the PIFSC's research areas were
provided in the notice of proposed rulemaking (86 FR 15298, March 22,
2021). Those descriptions remain accurate and sufficient, and we refer
the reader to that document rather than reprinting the information
here.
Detailed Description of Activities
A detailed description of the PIFSC's planned activities was
provided in the notice of proposed rulemaking (86 FR 15298, March 22,
2021) and is not repeated here except for the list of surveys provided
in table 1. No changes aside from the addition of one research program,
as described below, have been made to the specified activities
described therein.
After publication of the proposed rulemaking, PIFSC informed us of
an additional research program that was not identified in the proposed
rulemaking. The Marine Turtle Biology and Assessment Program (MTBAP)
conducts research with the potential to cause incidental disturbance of
Hawaiian monk seals only. No take of any other species of marine
mammals is expected to occur incidental to MTBAP research activities.
The MTBAP engages in long-term monitoring of sea turtles in order to
understand population status, abundance, and trends, including
permitted directed research which may result in incidental disturbance
of seals present near turtles that are the target of the research
activities. MTBAP conducts research activities year round in the HARA,
with a peak in activities occurring typically between March and
September each year when Northwestern Hawaiian Islands (NWHI) field
camps are deployed. Most field work that may incidentally disturb
Hawaiian monk seals occurs on shore where seals haul out, and in the
nearshore waters, while operating a vessel, where seals may be
swimming.
[[Page 21137]]
Table 1--Summary Description of PIFSC Fisheries and Ecosystem Research Activities in the Pacific Islands Region
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Season, frequency & Total number of
Survey name Survey description General area of yearly days at sea Gear used Gear details samples
operation (DAS) (approximated)
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Sampling Pelagic Stages of Results of sampling HARA, Year-round Cobb Tow 40 tows
Insular Fish Species. inform life MARA, ASARA, HARA: up trawl (midwater speed: 2.5-3.5 kt. per survey per
history and stock WCPRA. to 20 Days at Sea trawl) or Isaacs- Duration: year.
structure studies 3-200 nmi (DAS). Kidd 10-foot (ft) 60-240 minutes .................
for pelagic larval from shore.. MARA, (3-meter (m)) net (min). .................
and juvenile stage ASARA, WCPRA: up (midwater trawl). Depth: .................
specimens of to 30 DAS .................. deployed at .................
insular fish. approximately once .................. various depths .................
Additional habitat in research area Isaacs- during same tow 40 tows
information is every three years. Kidd 6-ft (1.8-m) to target fish at per survey per
also collected. Midwater net (surface different water year.
Target species are trawls are trawl). depths, usually
snapper, grouper, conducted at Dip net to 250 m.
and coral reef night, surface (surface).. Tow
fish species trawls are Trawl speed: 2.5-3.5
within the 0-175 m conducted day and mounted OES kts..
depth range. night. Netmind Duration:
(midwater).. 60 min..
Depth:
Surface..
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Spawning Dynamics of Highly Early life history HARA, Year-round Isaacs- Tow 140 tows
Migratory Species. studies provide MARA, ASARA, HARA: up Kidd 6-ft (1.8-m) speed: 2.5-3.5 per survey per
larval stages for WCPRA. to 25 DAS.. net (surface). kts. year.
population genetic 1-25 nmi MARA, .................. Duration: .................
studies and from shore.. ASARA, WCPRA: up Neuston 60 min.. 140 tows
include the to 25 DAS tows (surface). Depth: per survey per
characterization approximately once 1-m ring Surface.. year.
of habitat for in research area net (surface). Tow
early life stages every three years. Speed: 2.5-3.5
of pelagic Surface kts.
species. Egg and trawls are Duration:
larval collections conducted day and 30-60 min..
are taken in night. Depth: 0-
surface waters 3 m..
using a variety of
plankton gear,
primarily Isaac-
Kidd 6-ft (1.8-m)
surface trawl, but
also sometimes
including 1-m ring
net and surface
neuston net.
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Cetacean Ecology Assessment.... Survey transects HARA, Variable Cobb Tow 180 tows
conducted in MARA, ASARA, timing, depending trawl (midwater speed: 3 kts. total per year.
conjunction with WCPRA. on ship trawl). Duration: 180 tows
cetacean visual availability, up Small- 60-240 min.. per research
and acoustic to 180 DAS. mesh towed net Tow area.
surveys within the Usually (surface trawl). Speed: 2.5-3.5
Hawai[revaps]i EEZ conducted in non- kts.
to develop winter months. Duration:
ecosystem models Midwater 30-60 min..
for cetaceans. trawls are
Sampling also conducted at
includes active night, surface
acoustics to trawls are
determine relative conducted day and
biomass density of night.
sound scattering
layers; trawls to
sample within the
scattering layers;
cetacean
observations;
surface and water
column
oceanographic
measurements and
water sample
collection.
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Marine Debris Research and Surface and HARA, Annually, Neuston, Tow Up to
Removal. midwater plankton MARA, ASARA, or on an as-needed or similar, Speed: varied. 250 tows per
tows to quantify WCPRA. basis, up to 30 plankton nets Duration: survey per year.
floating DAS. surface towed <1 hour..
microplastic in Surface alongside ship
seawater. trawls are and/or small
conducted day and boats.
night.
Unmanned
aircraft surveys
are conducted
during the day or
night.
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[[Page 21138]]
Insular Fish Life History Provide size ranges HARA, HARA: July- Hook-and- Hand HARA:
Survey and Studies. of deepwater MARA, ASARA, September, up to line. line, electric or 350 operations
eteline snappers, WCPRA. 15 DAS/yr. hydraulic reel: per year.
groupers, and 0.2-5 nmi Other Each Other
large carangids to from shore. areas: Year-round, operation areas: 240
determine sex- up to 30 DAS for involves 1-3 operations per
specific length-at- each research area lines with. 4-6 year for each
age growth curves, once every three hooks per line; research area.
longevity years. soaked 1-30 min..
estimates, length Day and Squid
and age at 50% night.. bait on circle
reproductive hooks (typically
maturity within 10/0 to 12/0).
the Bottomfish
Management Unit
Species (BMUS) in
Hawai[revaps]i and
the other Pacific
Islands regions.
Specimens are
collected in the
field and sampled
at markets.
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Pelagic Troll and Handline Surveys would be HARA, Variable, Pelagic Troll A total
Sampling. conducted to MARA, ASARA,. up to 14 DAS Day troll and fishing with up of up to 2
collect life 0 to 24 and night. handline (hook to 4 troll lines operations of
history and nmi from shore and line) fishing. each with 1-2 any of these
molecular samples (excluding any baited hooks or 1- gear types per
from pelagic special resource 2 hook trolling DAS, totaling 28
species. Other areas). lures at 4-10 kts. operations (all
target species Pelagic types combined)
would be tagged- handline (hook- for the survey.
and-released. and-line) fishing
Different tags at 10-100 m
would used midwater depths,
depending upon the with hand,
species and study, electric, or
but could include: hydraulic reels.
passive, archival, Up to 4 lines.
ultrasonic, and Each line is
satellite tags. baited with 4
hooks.
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Insular fish Abundance Comparison of HARA, Variable, Hook-and- Hand, HARA:
Estimation Comparison Surveys. fishery- MARA, ASARA, up to 30 DAS per line. electric, 7,680 operations
independent WCPRA. research area per hydraulic reels. per year.
methods to survey year. Each MARA:
bottomfish HARA vessel fishes 2 1.920 every 3rd
assemblages in the surveyed annually, lines. Each line year (average)
Main Hawaiian ASARA, WCPRA is baited with 4- 640 operations
Islands: surveyed every 3 6 hooks. per year).
coordinated years. 1-30 ASARA:
research between Sampling minutes per 1,920 every 3rd
PIFSC and various occurs day and fishing operation. year (average e
partners Day and night. 640 per year).
night surveys are WCPRA:
used to develop 1,920 every 3rd
fishery- year (average
independent 640 per year).
methods to assess
stocks of
economically
important insular
fish.
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Kona Integrated Ecosystem Survey transects HARA; 2- Variable Cobb Tow 15-20
Assessment Cruise. conducted off the 10 nmi from shore. timing, depending trawl (midwater speed: 3 kts. tows/yr.
Kona coast and on ship trawl). Duration: .................
Kohala Shelf area availability, up Hook-and- 60-240 min.. No more
to develop to 10 DAS. line. Electric than 50 hours of
ecosystem models Day and or hydraulic effort.
for coral reefs, night.. reel: Each
socioeconomic operation Approximately 10
indicators, involves 1-3 mesopelagic
circulation lines, with squid squid caught per
patterns, larval lures, soaked 10- yr.
fish transport and 60 min at depths
settlement. between 200m to
Sampling includes 600m.
active acoustics
to determine
relative biomass
density of sound
scattering layers;
trawls to sample
within the
scattering layers;
cetacean
observations;
surface and water
column
oceanographic
measurements and
water sample
collection.
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[[Page 21139]]
Sampling of Juvenile-stage Sampling activity HARA..... July- Trap 10 traps
Bottomfish via Settlement to capture 0.2-5 nmi September. (settlement). Cylindrical traps per line set; up
Traps. juvenile recruits from shore.. Up to 25 are clipped to 4 line sets
of eteline DAS Day and night.. throughout the soaked per day,
snappers and water column onto from overnight
grouper that have a vertical line up to 3 days.
recently anchored on Up to
transitioned from bottom at up to 100 lines of
the pelagic to 400 m, supported traps set per
demersal habitat. by a surface yr.
Target species float. Catch of
include Deep-7 2500 juvenile
bottomfish and the stage bottomfish
settlement per year.
habitats these
stages are
associated with.
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Mariana Resource Survey........ Sampling activity MARA..... May-August Large- Tow 15-20
to quantify 0-25 nmi Up to 102 DAS mesh Cobb speed: 3 kts. tows per survey
baseline from shore.. (once every three midwater trawl. Duration: per year
bottomfish and years). Isaacs- 60-240 min .................
reef fish Midwater Kidd midwater trawls; 2 tows .................
resources in the trawls are trawl. per night. .................
Mariana conducted at .................. Depth(s): .................
Archipelago night, surface .................. deployed at .................
Research Area. trawls are .................. various depths .................
Various artificial conducted day and .................. during same tow 15-20
habitat designs, night. Small- to target fish at tows (any
Cobb trawl and IK In-water mesh surface different water combination of
trawls will be activities are trawl nets depths, usually the nets
developed, conducted during (Isaacs-Kidd, between 100 m and described).
enclosed in mesh the day. All neuston, ring, 200m. .................
used to retain others are day and bongo nets). Tow 25 gear
captures, and night. Traps speed: 3 kts. sets per cruise.
evaluated collect (Kona crab, Duration: Up to
pelagic-stage enclosure). up to 60 min.. 400 strings set
specimens of reef Depth: 0- per year.
fish and 200 m..
bottomfish ..................
species. Traps Up to ten
will be primarily Kona crab traps
set in mesophotic can be tied
habitats (50-200 m together with a
depths) and in the buoy on the end
quality of each net for
habitat for recent retrieval. They
recruits. deep- are left for
slope bottomfish approximately 20
habitats (200-500m min. Two strings
depths). of six enclosure
traps each would
be deployed at
night on sand,
rubble and
pavement (i.e.,
not coral)
substrate, and
retrieved the
next morning.
Up to 20
traps per string,
separated by 20
fathoms of ground
line; two depths
10-35 fathoms.
Up to 2
strings per DAS..
Hook-and- Electric 1,000
line. or hydraulic sets per survey.
reel: each
operation
involves 1-3
lines, with squid
lures, soaked 10-
60 min at depths
between 200 m to
600 m.
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Pelagic Longline, Troll, and Investigate HARA..... 21 DAS.... Pelagic Soak Up to 21
Handline Gear Trials. effectiveness of Longline Day and longline. time: 600-1800 longline
various types of fishing would night.. Trolling, min. operations per
hooks, hook occur outside of: and handline Troll year.
guards, gear (1) all longline (hook-and-line). fishing with up Up to 21
configurations, or exclusions zones to 4 troll lines troll or
other modified in the each with 1-2 handline
fishing practices Hawai[revaps]i baited hooks or 1- (combined)
for reducing the EEZ; (2) the 2 hook troll operations per
bycatch of non- Insular False lures at 4-10 kts. year.
target species and Killer Whale Pelagic
retaining or range, and (3) handline (hook-
increasing target all special and-line) fishing
catch. resource areas. at 10-100 m
Longline midwater depths,
fishing would with hand,
occur up to electric, or
approximately 500 hydraulic reels.
nmi from the Up to 4 lines.
shores of the Each line is
Hawai[revaps]i baited with 4
Archipelago. hooks.
Trolling Up to 4
and handline hrs per troll or
occurs 25 to 500 handline
nmi from shore operation.
(excluding any
special resource
areas).
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[[Page 21140]]
Pelagic Oceanographic Cruise... Investigate WCPRA.... Annual Large- Tow 20 tows
physical (e.g., 25-1000 (season variable) mesh Cobb speed: 3 kts. per year,
fronts) and nmi from shore in Up to 30 DAS. midwater trawl. Duration: alternating with
biological any direction. Midwater .................. 60-240 min.. Kona IEA cruise
features that trawls are .................. .................. 4 liters of
define the conducted at Plankton .................. micronekton per
habitats for night, surface drop net 1 m tow.
important trawls are (stationary diameter plankton 20 drops
commercial and conducted day and surface sampling). drop net would be per year
protected species night. .................. deployed down to (collections
of the North All other Small- 100 m. would be less
Pacific Ocean. activities are mesh surface and .................. than one liter
Sampling also conducted day and midwater trawl Duration: of plankton).
includes active night. nets (Isaacs- up to 60 min.. 15-20
acoustics to Kidd, neuston, Depth: 0- tows (any
determine relative ring, bongo nets). 200 m.. combination of
biomass density of the nets
sound scattering described) <1
layers; trawls to liter of
sample within the organisms per
scattering layers; tow.
surface and water
column
oceanographic
measurements and
water sample
collection.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lagoon Ecosystem Measure the WCPRA.... Up to 14 Divers SCUBA, 10 dives
Characterization. abundance and DAS. with hand net or snorkel, 12-inch per survey.
distribution of Conducted speargun. diameter small 10 fin
reef fish during the day.. Hook-and- mesh hand net. clips collected
(including line. Standard for genetic
juvenile bumphead rod and reel analyses.
parrotfish). using lures or 1-30
fish bait from minute casts.
shoreline or 60 casts
small boat. per survey.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 21141]]
Comments and Responses
We published a notice of proposed rulemaking in the Federal
Register on March 22, 2021 (86 FR 15298), and requested comments and
information from the public. During the 30-day comment period, we did
not receive any public comments.
Changes From Proposed Rule to Final Rule
As discussed above, we have included evaluation of a PIFSC research
program (MTBAP) not previously identified in the proposed rulemaking.
As detailed in the Estimated Take section, later in this document,
anticipated impacts from these research activities are not different in
type from what has already been analyzed under the proposed rule, and
the expected take of marine mammals is not increased as a result of our
evaluation of these activities. There are no other changes from the
proposed rule to this final rule.
Description of Marine Mammals in the Area of the Specified Activity
We have reviewed PIFSC's species descriptions--which summarize
available information regarding status and trends, distribution and
habitat preferences, behavior and life history, and auditory
capabilities of the potentially affected species--for accuracy and
completeness and refer the reader to sections 3 and 4 of PIFSC's
application, instead of reprinting the information here (note that
PIFSC provides additional information regarding marine mammal
observations around the Main Hawaiian Islands (MHI) in table 3.3 of
their application, including information about group size and
seasonality). Additional information regarding population trends and
threats may be found in NMFS's Stock Assessment Reports (SAR; 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'
website (https://www.fisheries.noaa.gov/find-species).
Table 2 lists all species with expected potential for occurrence in
the specified geographical regions where PIFSC plans to conduct the
specified activity 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 the Society for Marine Mammalogy Committee on
Taxonomy. PBR, defined by the MMPA as the maximum number of animals,
not including natural mortalities, that may be removed from a marine
mammal stock while allowing that stock to reach or maintain its optimum
sustainable population, is discussed in greater detail later in this
document (see the Negligible Impact Analysis and Determination
section).
Stocks are not designated for most species in areas of the
specified geographical regions outside of the Hawaiian EEZ. Therefore,
while all species with expected potential for occurrence in the
specified geographical regions are listed in table 2, the listed stocks
are in most cases specific to the Hawaiian EEZ. The only exceptions are
NMFS-designated stocks for the humpback whale, rough-toothed dolphin,
spinner dolphin, and false killer whale in American Samoa (animals
belonging to these stocks would occur in the ASARA), and a false killer
whale stock designated for Palmyra Atoll (animals belonging to this
stock would occur in the WCPRA). With the exception of the humpback
whale and the aforementioned Palmyra Atoll stock of false killer whale,
animals of any species occurring in the MARA or areas of the WCPRA
outside of the Hawaiian EEZ and American Samoa EEZ would not be part of
any NMFS-designated stock. Aside from the four species listed above,
animals of any species occurring in the American Samoa EEZ would not be
part of any NMFS-designated stock. As a reminder, the HARA, MARA, and
ASARA are considered to include waters of the contiguous zone around
these archipelagoes (i.e., 0-24 nmi from land), while the WCPRA is
considered to include all remaining EEZ waters around those
archipelagoes as well as the high seas and waters around U.S.
possessions of the Pacific Remote Islands Area.
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.
Abundance estimates and related information, PBR values, and annual M/
SI values given in table 2 are specific to the stocks for which they
are listed. This information is generally not available for these
species occurring in areas outside the ranges of NMFS-designated
stocks. NMFS-designated stocks in the Hawai[revaps]i region include
animals found both within the Hawaiian Islands EEZ and in adjacent high
seas waters; however, because data on abundance, distribution, and
human-caused impacts are largely lacking for high seas waters, the
status of these stocks are generally evaluated based on data from the
U.S. EEZ waters of the Hawaiian Islands (including the Main Hawaiian
Islands and Northwestern Hawaiian Islands). For certain species,
existing data support the existence of demographically distinct
resident populations associated with different regions within the
Hawaiian Islands, and separate stocks are designated accordingly. NMFS-
designated stocks for American Samoa include animals occurring within
EEZ waters around American Samoa. All managed stocks in the specified
geographical regions are assessed in either NMFS's U.S. Pacific SARs or
U.S. Alaska SARs. All values presented in table 2 are the most recent
available at the time of publication, including from the draft 2023
SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).
A detailed description of the species likely to be affected by the
PIFSC's activities, including brief introductions to the species and
relevant stocks as well as available information regarding population
trends and threats, were provided in the PIFSC's LOA application and
summarized in the notice of proposed rulemaking for this action (86 FR
15298, March 22, 2021); since that time, we are not aware of any
changes (except changes to the humpback whale stock designation as
described below) in the status of these species or stocks; therefore,
detailed descriptions are not provided here.
[[Page 21142]]
Table 2--Marine Mammals Potentially Present in the Vicinity of PIFSC Research Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Occurrence \2\ Stock abundance
---------------------------- ESA/MMPA (CV, Nmin, most
Common name Scientific name Stock \1\ status; recent abundance PBR Annual M/
H A R M A R A S A W C P strategic (Y/ survey) \4\ SI \5\
A A R A R A N) \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
(rorquals):
Humpback whale............. Megaptera American Samoa.... X X X X -; N unk (n/a; 150; 0.4 0
novaeangliae Hawaii............ -; N 2008). 127 27.1
kuzira. 11,278 (0.56;
7,265; 2020).
Western North E/D; Y 1,084 (0.09; 3.4 5.8
Pacific. 1,007; 2006).
Minke whale................ Balaenoptera Hawai[revaps]i.... X X X X -; N 438 (1.05; 212; 2.1 0
acutorostrata 2017).
scammoni.
Bryde's whale.............. B. edeni brydei... Hawai[revaps]i.... X X X X -; N 791 (0.29; 623; 6.2 0
2020).
Sei whale.................. B. borealis Hawai[revaps]i.... X X ..... X E/D; Y 391 (0.9; 204; 0.4 0.2
borealis. 2010).
Fin whale.................. B. physalus Hawai[revaps]i.... X X ..... X E/D; Y 203 (0.99; 101; 0.2 0
physalus. 2017).
Blue whale................. B. musculus CNP............... X X ..... X E/D; Y 133 (1.09; 63; 0.1 0
musculus. 2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale................ Physeter Hawai[revaps]i.... X X X X E/D; Y 5,707 (0.23; 18 0
macrocephalus. 4,486; 2017).
Family Kogiidae:
Pygmy sperm whale.......... Kogia breviceps... Hawa[revaps]i..... X X ..... X -; N 42,083 (0.64, 257 0
25,695, 2017).
Dwarf sperm whale.......... K. sima........... Hawai[revaps]i \6\ X X X X -; N unk.............. undet 0
Family Ziphiidae (beaked
whales):
Cuvier's beaked whale...... Ziphius Hawai[revaps]i X X X X -; N 4,431 (0.41; 32 0
cavirostris. Pelagic. 3,180; 2017).
Longman's beaked whale..... Indopacetus Hawai[revaps]i.... X ..... ..... X -; N 2,550 (0.67; 15 0
pacificus. 1,527; 2017).
Blainville's beaked whale.. Mesoplodon Hawai[revaps]i.... X X ..... X -; N 1,132 (0.99; 564; 5.6 0
densirostris. 2017).
Deraniyagala's beaked whale M. hotaula........ n/a............... ..... ..... ..... X -; N unk.............. undet unk
Family Delphinidae:
Rough-toothed dolphin...... Steno bredanensis. Hawai[revaps]i.... X X X X -; N 83,915 (0.49; 511 3.2
56,782; 2017).
American Samoa \6\ -; N unk.............. undet unk
Common bottlenose dolphin.. Tursiops truncatus Hawai[revaps]i X X X X -; N 24,669 (0.57; 158 0
truncatus. Pelagic. 15,783; 2020).
Kauai and -; N 112 (0.24; 92; 0.9 unk
Ni[revaps]ihau. 2018).
Oahu.............. -; N 112 (0.17; 97; 1.0 unk
2017).
Maui Nui.......... -; N 64 (0.15; 56; 0.6 unk
2018).
Hawai[revaps]i -; N 136 (0.43; 96; 1.0 >=0.2
Island. 2018).
Pantropical spotted dolphin Stenella attenuata Hawai[revaps]i X X X X -; N 67,313 (0.27; 538 0
attenuata. Pelagic. 53,839; 2020).
Oahu.............. -; N unk.............. undet unk
Maui Nui.......... -; N unk.............. undet unk
Hawai[revaps]i -; N unk.............. undet >=0.2
Island.
Spinner dolphin............ S. longirostris Hawai[revaps]i X X X X -; N unk.............. undet 0
longirostris. Pelagic \6\.
Kauai and -; N 601 (0.2; unk; undet unk
Ni[revaps]ihau 2005).
\6\.
Oahu/4--Island -; N 355 (0.09; unk; undet >=0.4
Region \6\. 2007).
Hawai[revaps]i -; N 665 (0.09; 617; 6.2 >=1.0
Island. 2012).
Kure and Midway -; N 260 (n/a; 139; undet unk
Atoll \6\. 2010).
Pearl and Hermes -; N unk.............. undet unk
Reef \6\.
American Samoa \6\ -; N unk.............. undet unk
Striped dolphin............ S. coeruleoalba... Hawai[revaps]i X X ..... X -; N 64,343 (0.28; 511 0
Pelagic. 51,055; 2020).
Fraser's dolphin........... Lagenodelphis Hawai[revaps]i.... X X ..... X -; N 40,960 (0.70; 241 0
hosei. 24,068; 2017).
Risso's dolphin............ Grampus griseus... Hawai[revaps]i.... X X ..... X -; N 6,979 (0.29; 53 0
5,283; 2020).
Melon-headed whale......... Peponocephala Hawaiian Islands.. X X ..... X -; N 40,647 (0.74; 233 0
electra. .................. ............ 23,301; 2017). ........ ........
Kohala Resident... -; N 447 (0.12; unk; undet 0
2017).
Pygmy killer whale......... Feresa attenuata.. Hawai[revaps]i.... X X ..... X -; N 10,328 (0.75; 59 0
5,885; 2017).
[[Page 21143]]
False killer whale......... Pseudorca Northwestern X X X X -; N 477 (1.71; 178; 1.43 0.16
crassidens. Hawaiian Islands. 2017).
Hawai[revaps]i -; N 5,528 (0.35; 33 47
Pelagic. 4,152; 2017).
Main Hawaiian E/D; Y 138 (0.08; 129; 0.26 0.03
Islands Insular. 2015).
American Samoa.... -; N unk.............. undet unk
Palmyra Atoll..... -; N 1,329 (0.65; 806; 6.4 0.3
2005).
Killer whale............... Orcinus orca...... Hawai[revaps]i.... X X X X -; N 161 (1.06; 78; 0.8 0
2017).
Short-finned pilot whale... Globicephala Hawai[revaps]i.... X X X X -; N 19,242 (0.23; 159 0.2
macrorhynchus. 15,894; 2020).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless
seals):
Hawaiian monk seal......... Neomonachus Hawai[revaps]i.... X ..... ..... X E/D; Y 1,564 (0.05; 5.1 5.4
schauinslandi. 1,444; 2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ All species with potential for take by PIFSC are presented in table 2. All known stocks are presented here but marine mammals in the MARA, ASARA,
and WCPRA are generally not assigned to designated stocks.
\2\ HARA: Hawaiian Archipelago Research Area; MARA: Mariana Archipelago Research Area; ASARA: American Samoa Archipelago Research Area; WCPRA: Western
and Central Pacific Research Area.
\3\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\4\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\5\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum
value.
\6\ Abundance estimates for these stocks are not considered current. PBR is therefore considered undetermined for these stocks, as there is no current
minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available
information for use in this document.
Humpback Whale
On September 8, 2016, NMFS divided the once single humpback whale
species into 14 distinct population segments (DPS) under the ESA,
removed the species-level listing as endangered, and, in its place,
listed 4 DPSs as endangered and 1 DPS as threatened (81 FR 62259,
September 8, 2016). The remaining nine DPSs were not listed. There are
four DPSs in the North Pacific, including Western North Pacific, which
is listed as endangered, and Hawaii, which is not listed.
The 2022 Alaska and Pacific SARs described a revised stock
structure for humpback whales which modifies the previous stocks
designated under the MMPA to align more closely with the ESA-designated
DPSs (Caretta et al., 2023; Young et al., 2023). Specifically, the
three previous North Pacific humpback whale stocks (central and western
North Pacific stocks and a CA/OR/WA stock) were replaced by five
stocks, largely corresponding with the ESA-designated DPSs. These
include Western North Pacific and Hawaii stocks, which correspond with
the DPSs of the same names, and which (along with the American Samoa
stock) are the only stocks potentially affected by PIFSC activities.
The Hawai[revaps]i stock consists of one demographically
independent population (DIP) (Hawaii--southeast Alaska/northern British
Columbia DIP) and one unit (Hawaii--north Pacific unit), which may or
may not be composed of multiple DIPs (Wade et al., 2021). The DIP and
unit are managed as a single stock at this time, due to the lack of
data available to separately assess them and lack of compelling
conservation benefit to managing them separately (NMFS, 2023; NMFS,
2019; NMFS, 2022b). The DIP is delineated based on two strong lines of
evidence: genetics and movement data (Wade et al., 2021). Whales in the
Hawaii--southeast Alaska/northern British Columbia DIP winter off
Hawaii and largely summer in southeast Alaska and northern British
Columbia (Wade et al., 2021). The group of whales that migrate from
Russia, western Alaska (Bering Sea and Aleutian Islands), and central
Alaska (Gulf of Alaska excluding southeast Alaska) to Hawaii have been
delineated as the Hawaii--North Pacific unit (Wade et al., 2021). There
are a small number of whales that migrate between Hawaii and southern
British Columbia/Washington, but current data and analyses do not
provide a clear understanding of which unit these whales belong to
(Wade et al., 2021; Caretta et al., 2023; Young et al., 2023).
The Western North Pacific (WNP) stock consists of two units, the
Philippines/Okinawa--North Pacific unit and the Marianas/Ogasawara--
North Pacific unit. The units are managed as a single stock at this
time, due to a lack of data available to separately assess them (NMFS
2023a, NMFS 2019, NMFS 2022d). Recognition of these units is based on
movements and genetic data (Oleson et al., 2022). Whales in the
Philippines/Okinawa--North Pacific unit winter near the Philippines and
in the Ryukyu Archipelago and migrate to summer feeding areas primarily
off the Russian mainland (Oleson et al., 2022). Whales that winter off
the Mariana Archipelago, Ogasawara, and other areas not yet identified
and then migrate to summer feeding areas off the Commander Islands, and
to the Bering Sea and Aleutian Islands comprise the Marianas/
Ogasawara--North Pacific unit.
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
[[Page 21144]]
to sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. 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, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Generalized hearing ranges were
chosen based on the ~65 decibel (dB) threshold from composite
audiograms, previous analyses in NMFS (2018), and/or data from Southall
et al. (2007) and Southall et al. (2019). We note that the names of two
hearing groups and the generalized hearing ranges of all marine mammal
hearing groups have been recently updated (NMFS, 2024) as reflected
below in table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2024]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 36 kHz.
whales).
High-frequency (HF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
Very High-frequency (VHF) cetaceans 200 Hz to 165 kHz.
(true porpoises, Kogia, river
dolphins, Cephalorhynchid,
Lagenorhynchus cruciger & L.
australis).
Phocid pinnipeds (PW) (underwater) 40 Hz to 90 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 68 kHz.
(sea 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 may not be as broad. Generalized hearing range
chosen based on ~65 dB threshold from composite audiogram, previous
analysis in NMFS 2018, and/or data from Southall et al. 2007; Southall
et al. 2019. Additionally, animals are able to detect very loud sounds
above and below that ``generalized'' hearing range.
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2024) for a review of available information.
Potential Effects of the Specified Activity on Marine Mammals and Their
Habitat
Detailed descriptions of the potential effects of the various
elements of the PIFSC's specified activity on marine mammals and their
habitat were provided in the proposed rule (86 FR 15298, March 22,
2021) as well as the 2023 Programmatic Environmental Assessment (PEA).
Additionally, detailed descriptions of the potential effects of similar
specified activities have also been provided in other Federal Register
notices of proposed rulemaking (e.g., 81 FR 38516, June 13, 2016; 83 FR
37638; August 1, 2018; 84 FR 6576, February 27, 2019), and section 7 of
the PIFSC's LOA application provides a discussion of the potential
effects of their specified activity, which we have reviewed for
accuracy and completeness. No significant new information is available,
and these discussions provide the necessary, adequate and relevant
information regarding the potential effects of the PIFSC's specified
activities on marine mammals and their habitat. Therefore, we refer the
reader to these documents rather than repeating the information here.
The referenced information includes a summary and discussion of the
ways that components of the specified activity (e.g., gear deployment,
use of active acoustic sources, visual disturbance) may impact marine
mammals and their habitat.
As stated previously, the use of certain research gears, including
trawl nets, gillnets, longline gear, and fyke nets, has the potential
to result in interaction with marine mammals. In the event of a marine
mammal interaction with research gear, injury, serious injury, or
mortality may result from entanglement or hooking. Exposure to sound
through the use of active acoustic systems for research purposes may
result in Level B harassment. However, as detailed in the previously
referenced discussions, Level A harassment in the form of permanent
threshold shift (PTS) is extremely unlikely to occur, and we consider
such effects discountable. Finally, it is expected that hauled out
pinnipeds may be disturbed by approaching researchers such that Level B
harassment could occur. Ship strike is not a reasonably anticipated
outcome of PIFSC research activities, given the small amount of
distance covered by research vessels, use of observers, and their
relatively slow speed in comparison to commercial shipping traffic
(i.e., the primary cause of marine mammal vessel strikes).
With specific reference to Level B harassment that may occur as a
result of acoustic exposure, we note that the analytical methods
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 PIFSC 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 final rule). In summary, while we
authorize the amount of take by Level B harassment indicated in the
Estimated Take section, and consider these potential takings at face
value in our negligible impact analysis, it is uncertain whether use of
these acoustic systems are likely to cause take at all, much less at
the estimated levels.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Negligible Impact Analysis and
Determination section considers the potential effects of the specified
activity, the Estimated Take section, and the Mitigation section, to
draw conclusions
[[Page 21145]]
regarding the likely impacts of these activities on the reproductive
success or survivorship of individuals and how those impacts on
individuals are likely to impact marine mammal species or stocks.
Estimated Take
This section provides an estimate of the number of incidental takes
to be authorized through an LOA, which will inform both NMFS'
determination of whether the number of takes are ``small'' and the
negligible impact determination.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Take of marine mammals incidental to PIFSC 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
The use of historical interactions as a basis to estimate future
take of marine mammals in fisheries research gear has been utilized in
the LOA applications and rules of other NMFS Fisheries Science Centers
(e.g., Southwest (SWFSC), Northwest (NWFSC)). However, because PIFSC
has no history of marine mammal take in any of the gear used during its
fisheries and ecosystem research, additional factors must be
considered. Instead, NMFS used information from commercial fisheries,
other NMFS Fisheries Science Centers operations, and published take as
described below.
NMFS believes it is appropriate to include estimates for future
incidental takes of a number of species that have not been taken by
PIFSC historically, but inhabit the same areas and show similar types
of behaviors and vulnerabilities to gear used by other NMFS Fisheries
Science Centers and used in commercial fisheries (based on the 2024
List of Fisheries (LOF), see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries).
A number of factors were taken into account to determine whether a
species may have a similar vulnerability to certain types of gear as
species taken in commercial gear and research gear elsewhere (e.g.,
distribution, density, abundance, behavior, feeding ecology, travel in
groups, and common association with other species historically taken in
commercial gear or other Fisheries Science Centers). While such take
could potentially occur, NMFS believes that any occurrences would
likely be rare given that no such take in PIFSC research has occurred
(despite many years of the same or similar surveys occurring).
Moreover, marine mammal behavioral and ecological characteristics
reduce the risk of incidental take from research gear, and the required
mitigation measures reduce the risk of incidental take.
As background to the process of determining which species not
historically taken may have sufficient vulnerability to capture in
PIFSC gear to justify inclusion in these regulations, we note that the
PIFSC is NMFS's research arm in the central and western Pacific Ocean
and may be considered as a leading source of expert knowledge regarding
marine mammals (e.g., behavior, abundance, density) in the areas where
they operate. The species for which the take request was formulated
were selected by the PIFSC, and we have concurred with these decisions.
While PIFSC has not historically taken marine mammal species in its
longline gear, it is well documented that some species potentially
encountered during PIFSC surveys are taken in commercial longline
fisheries. In order to evaluate the potential vulnerability of species
to trawl and longline fishing gear and entanglement from instrument
deployment and traps, we first consulted the LOF. The LOF classifies
U.S. commercial fisheries into one of three categories according to the
level of incidental marine mammal M/SI that occurs on an annual basis
over the most recent 5-year period (generally) for which data has been
analyzed: Category I, frequent incidental M/SI; Category II, occasional
incidental M/SI; and Category III, remote likelihood of or no known
incidental M/SI. We provide summary information, as presented in the
2024 LOF (89 FR 12257, February 16, 2024), in table 4. In order to
simplify information presented, and to encompass information related to
other similar species from different locations, we group marine mammals
by genus (where there is more than one member of the genus found in
U.S. waters). Where there are documented incidents of M/SI incidental
to relevant commercial fisheries, we note whether we believe those
incidents provide sufficient basis upon which to infer vulnerability to
capture in PIFSC research gear. For a listing of all Category I, II,
and III fisheries using relevant gears, associated estimates of fishery
participants, and specific locations and fisheries associated with the
historical fisheries takes indicated in table 4 below, please see the
2024 LOF. For specific numbers of marine mammal takes associated with
these fisheries, please see the relevant SARs. More information is
available online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries and
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
Table 4--U.S. Commercial Fisheries Interactions for Trawl and Longline Gear for Relevant Species
----------------------------------------------------------------------------------------------------------------
Vulnerability Vulnerability
Species \1\ Trawl \2\ inferred? \3\ Longline \2\ inferred \3\
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin.......................... N Y Y Y
False killer whale.......................... N N Y Y
Humpback whale.............................. N N Y Y
Kogia spp................................... N N Y Y
Pygmy killer whale.......................... N N Y Y
Risso's dolphin............................. N N Y Y
Rough-toothed dolphin....................... N Y Y Y
Short-finned pilot whale.................... N N Y Y
[[Page 21146]]
Sperm whale................................. N N Y Y
Striped dolphin............................. N Y Y Y
Cuvier's beaked whale....................... N N Y Y
Blainville's beaked whale................... N N Y Y
Pantropical spotted dolphin................. N Y N Y
Spinner dolphin............................. N Y N Y
----------------------------------------------------------------------------------------------------------------
\1\ Please refer to table 2 for taxonomic reference.
\2\ Indicates whether any member of the species has documented incidental M/SI in a U.S. fishery using that gear
in the most recent 5-year timespan for which data is available.
\3\ Indicates whether NMFS has inferred that a species not historically taken by PIFSC has the potential to be
taken in the future based on records of marine mammals taken by U.S. commercial fisheries. Y = yes, N = no.
Information related to incidental M/SI in relevant commercial
fisheries is not, however, the sole determinant of appropriateness for
authorizing take incidental to PIFSC survey operations. Numerous
factors (e.g., species-specific knowledge regarding animal behavior,
overall abundance in the geographic region, density relative to PIFSC
survey effort, feeding ecology, propensity to travel in groups commonly
associated with other species historically taken) were considered by
the PIFSC to determine whether a species not previously taken by PIFSC
may be taken during future research activities. In some cases, NMFS
have determined that species without documented M/SI may nevertheless
be vulnerable to capture in PIFSC research gear. Those species with no
records of historical interaction with PIFSC research gear and no
documented M/SI in relevant commercial fisheries, and for which the
PIFSC has not requested the authorization of incidental take, are not
considered further in this section. The PIFSC believes generally that
any sex or age class of those species for which take authorization is
requested could be taken.
To estimate the potential number of takes by M/SI from PIFSC
research gear, we first determine which species may have vulnerability
to capture by gear type. Of those species, we then determine whether
any may have similar propensity to be taken by a given gear as a
historically-taken species in U.S. commercial fisheries (inferred
vulnerability). For these species, we assume it is possible that take
could occur while at the same time contending that, absent significant
range shifts or changes in habitat usage, capture of a species not
historically taken by PIFSC research activities would likely be a very
rare event. Therefore, we assume that take by PIFSC would be a rare
event such that authorization of a single take over the 5-year period,
for each region where the gear is used and the species is present, is
likely sufficient given the low risk of marine mammals interacting with
PIFSC gear.
Longline--While longline research would only be conducted outside
of the longline exclusion areas (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/false-killer-whale-take-reduction),
several species of small cetaceans were deemed to have a similar
vulnerability to longline gear as some historically-taken species by
other NMFS Fisheries Science Centers or by commercial fisheries using
factors outlined above. The commercial fisheries, HI deep-set longline
(Category I) and the HI shallow-set longline and American Samoa
longline (both Category II) fisheries, report taking marine mammals.
The longline fisheries the LOF identifies having taken marine mammals
on the High Seas are the Western Pacific Pelagic (HI Deep-set
component, Category I) and Western Pacific Pelagic (HI Shallow-set
component, Category II).
PIFSC assumes any take of marine mammals in longline fisheries
research activities will be a rare occurrence. As stated above, NMFS
expects that take of marine mammals by M/SI by PIFSC would be a rare
event such that no more than a single take of each species/stock by M/
SI over the 5-year period, is reasonably likely to occur. Therefore,
PIFSC requested, and NMFS is authorizing, one take in longline gear
over the 5-year authorization period throughout the PIFSC research area
for each of the following species: bottlenose dolphin (Hawai[revaps]i
pelagic stock), Blainville's beaked whale (Hawai[revaps]i pelagic
stock), Cuvier's beaked whale (Hawai[revaps]i pelagic stock), Kogia
spp. (Hawai[revaps]i stocks), false killer whale (Hawai[revaps]i
pelagic stock), Pantropical spotted dolphin (all stocks), pygmy killer
whale (Hawai[revaps]i stock), rough toothed dolphin (Hawai[revaps]i
stock), Risso's dolphin (Hawai[revaps]i stock), short-finned pilot
whale (Hawai[revaps]i stock), and striped dolphin (Hawai[revaps]i
stock) (table 5). While the LOF includes commercial fishery takes of
false killer whales and rough-toothed dolphins from the respective
American Samoa stocks, PIFSC has not requested, and NMFS has not
authorized, take by M/SI of these species/stocks because PIFSC does not
anticipate conducting longline research anywhere within the range of
these species/stocks throughout the time period addressed by this
application (e.g., longline surveys in the WCPRA would occur within 500
nmi of the HARA, which is at least 1600 nmi from the ASARA and outside
of the range of the American Samoa stocks of false killer whales and
rough-toothed dolphins). Additionally, the LOF includes commercial
fishery takes of the MHI insular stock of false killer whales, but
PIFSC will not be conducting longline research within the stock's
range; therefore, the PIFSC has not requested, and NMFS has not
authorized, M/SI takes of this stock. Spinner dolphins have not been
reported taken in Hawai[revaps]i based longline fisheries in the LOF.
The PIFSC therefore has not requested, and NMFS has not authorized, any
take of this species in analogous fisheries research gear.
While PIFSC has not historically taken large whales in its longline
gear, these species are taken in commercial longline fisheries. There
are two large whale species that have been taken by commercial longline
fisheries and for which PIFSC has requested a single take each over the
5-year authorization period in longline gear: the humpback whale and
the sperm whale. Sperm whales are listed as endangered under the ESA
and thus by definition, depleted under the MMPA. Although large whale
species could become entangled in longline gear, the probability of
interaction with PIFSC longline gear is extremely low
[[Page 21147]]
considering a much lower level of survey effort and shorter duration
sets relative to that of commercial fisheries. For example, in 2014
approximately 47.1 million hooks were deployed in commercial longline
fishing in the PIFSC research areas (see https://www.fisheries.noaa.gov/resource/data/hawaii-longline-fishery-logbook-summary-reports); in contrast PIFSC plans to deploy up to 73,500 hooks/
year or 0.0015 percent of the effort in these commercial fisheries. The
mitigation measures taken by PIFSC are also expected to reduce the
likelihood of taking large whales (see Mitigation section) Although
there is only a limited potential for take, PIFSC has requested, and
NMFS is authorizing, one take of humpback whale (Hawai[revaps]i stock)
in longline gear and one take of a sperm whale (Hawai[revaps]i stock)
by M/SI based on analogy with commercial fisheries over the 5-year
authorization period of this application.
Trawl--Although PIFSC has never taken small delphinids in a pelagic
midwater trawl such as an Isaacs-Kidd or Cobb trawl, and no commercial
trawl fisheries in PIFSC research areas have reported takes, there is a
remote possibility such a take could occur. This research targets very
small pelagic species (e.g., micronekton, pelagic larvae) not likely to
attract foraging small delphinids. Thus incidental catch of a small
delphinid is unlikely in either technique but even less so for the
Isaacs-Kidd trawl due to the very small opening (about 3 m x 3 m)
whereas the mouth of the PIFSC Cobb trawls are about 10 m x 10 m.
However, to address a rare situation or event, PIFSC requested, and
NMFS is authorizing, one take each of the following small delphinids in
trawl gear over the 5-year period of this rule: bottlenose dolphin (all
stocks), rough-toothed dolphin (Hawai[revaps]i stock), spinner dolphin
(all stocks), Pantropical spotted dolphin (all stocks), and striped
dolphin (Hawai[revaps]i stock).
Instrument and Trap Deployments-- Humpback whales inhabit shallow
waters, typically within the 100-fathom isobaths in the HARA (Baird et
al., 2000). PIFSC conducts a variety of instrument deployments and
insular fish abundance surveys between 50 m and 600 m and bottomfish
EFH surveys between 100-400 m (see table 1.1 in PIFSC's application)
using gear similar to that used in a variety of commercial fisheries.
Thus such research gear has the potential for entangling humpback
whales surfacing from dives. Such instruments include aMOUSS, BotCam,
baited remote underwater video systems (BRUVS) deployed from a vessel
and connected to the surface with a line to a float or vessel;
environmental sampling instruments deployed by line; and baited or
unbaited bottom traps such as lobster traps and fish traps deployed
from a vessel and connected to the surface with line to a float.
Therefore PIFSC requested, and NMFS is authorizing, one take of
humpback whale (Hawai[revaps]i stock) in gear associated with deployed
instruments and traps. In addition, based on a similarity in behavior,
several species of ``curious'' small delphinids have the potential for
becoming entangled in gear associated with instrument deployments.
PIFSC has established mitigation measures already in place to reduce
potential interactions (e.g., no deployment when marine mammals are
known to be in the immediate area). Because there is a remote chance
such entanglement may occur when an animal investigates such gear,
PIFSC requested, and NMFS is authorizing, one take each over the 5-year
authorization period of each of the following small delphinid species:
bottlenose dolphin (all stocks), rough-toothed dolphin (Hawai[revaps]i
stock), spinner dolphin (all stocks), and pantropical spotted dolphin
(all stocks) in ``instrument deployment'' gears.
Other gear--PIFSC considered the risk of interaction with marine
mammals for all the research gear and instruments it uses, but PIFSC
did not request, and NMFS has not authorized, incidental takes for
research gear other than midwater trawls, longline, instrument
deployments, and traps. PIFSC acknowledges that by having hooks, nets,
lines, or vessels in the water there is a potential for incidental take
of marine mammals during research activities. However, many of the
fisheries and ecosystem research activities conducted by PIFSC involve
gear or instruments that are not expected to cause mortality, serious
injury, or Level A harassment. These include gear and instruments that
are operated by hand or close enough to the vessel that they can be
continuously observed and controlled such as dip nets, scoop nets,
handheld gear and instruments used by SCUBA divers or free divers
(cameras, transect lines, and spears), environmental data collectors
deployed or attached by hand to the reef, marine debris removal tools
(knives and float bags), and small surface net trawls adjacent to the
vessel. Other gear or instruments that are used so infrequently,
operate so slowly, or carried out with appropriate mitigation measures
so as not to present a reasonable risk of interactions with marine
mammals include: autonomous vehicles such as gliders, autonomous
underwater vehicles (AUVs), unmanned aerial vehicles (UAVs), unmanned
aircraft systems (UASs), and towed optical assessment devices (TOADs);
submersibles; towed-divers; troll fishing; larval settlement traps
temporarily installed on the reef; expendable bathythermographs (XBTs);
and environmental data collectors temporarily deployed from a vessel to
the seafloor and then retrieved remotely such as high-frequency
recording packages (HARPs) and ecological acoustic readers (EARs).
Please refer to table 1.1 and appendix A in PIFSC's application for a
list of the research projects that use this gear and descriptions of
their use.
The gear and instruments listed above are not considered to have a
reasonable potential to take marine mammals given their physical
characteristics, how they are fished, and the environments where they
are used. There have been no marine mammal mortalities, serious
injuries, or takes by Level A harassment associated with any of these
gear types. Because of this, NMFS does not expect these activities to
result in take of marine mammals in the PIFSC research areas, and has
not authorized marine mammal take for these gears or instruments.
Bottomfishing--There is evidence that cetaceans and Hawaiian monk
seals occasionally pursue fish caught on various hook-and-line gear
(depredation of fishing lines) deployed in commercial and non-
commercial fisheries across Hawai[revaps]i (Nitta and Henderson, 1993;
Kobayashi and Kawamoto, 1994). This depredation behavior, which is
documented as catch loss from the hook-and-line gear, may be beneficial
to the marine mammal in providing prey but it also opens the
possibility for the marine mammal to be hooked or entangled in the
gear. PIFSC gave careful consideration to the potential for including
incidental take requests for marine mammals in bottom handline
(bottomfishing) gear because of the planned increase in research effort
using that gear in the Insular Fish Abundance Estimation Comparison
Survey (from approximately 700 sets per year to over 7000 sets per
year). PIFSC has not had any interactions in the past with marine
mammals while conducting research with bottomfishing gear in the MHI.
Bottlenose dolphins have been identified as the primary species
associated with depredation of catch in the bottomfish fishery and they
appear to be adept at pulling hooked fish from the gear without
breaking the line or taking hooks off the line (Kobayashi and Kawamoto,
1994). It is not known if
[[Page 21148]]
these interactions result in injury, serious injury, or mortality of
bottlenose dolphins or other cetaceans (Caretta et al., 2015). No
mortality or serious injuries of monk seals have been attributed to the
MHI bottomfish handline fishery (Caretta et al., 2019). In 2016, 11
seal hookings were documented and all were classified as non-serious
injuries, although 6 of these would have been deemed serious had they
not been mitigated (Henderson, 2017; Mercer, 2018). The hook-and-line
rigging used to target ulua (jacks, Caranx spp.) are typical of
shoreline fisheries that are distinct from the bottomfishing gear and
methods used by PIFSC during its fisheries and ecosystem research.
Although there are some similarities between the shoreline fishery and
the bottomfishing gear used by PIFSC (e.g., circle hooks), the general
size and the way the hooks are rigged (e.g., baits, leaders, weights,
tackle) are typically different and probably present different risks of
incidental hooking to monk seals. Ulua hooks are generally much larger
circle hooks than PIFSC uses because the targeted ulua are usually
greater than 50 pounds (23 kilograms) in weight. Shoreline fisheries
(deployed from shore with rod and reel) also typically use ``slide
bait'' or ``slide rigs'' that allow the use of live bait (small fish or
octopus) hooked in the middle of the bait. If a monk seal pursued this
live bait and targeted the center of the bait or swallowed it whole, it
could get hooked in the mouth. PIFSC research with bottomfishing gear
uses pieces of fish for bait that attract bottomfish but not monk
seals. Monk seals could be attracted to a caught bottomfish but, given
the length of the target bottomfish, it is unlikely that a monk seal
would be physically capable of swallowing the whole fish and thus
swallowing the hook. The risk of monk seals getting hooked on
bottomfishing gear used in PIFSC research is therefore less than the
risk of getting hooked on shoreline hook-and-line gears which are
identified in Caretta et al. (2019).
PIFSC has no records of marine mammals interacting with
bottomfishing research gear and given the mitigation measures the PIFSC
would be required to implement for bottomfishing research to prevent
marine mammals from interacting with bottomfishing activities (e.g.,
avoiding fishing when monk seals are present; see Mitigation below),
NMFS has determined that PIFSC use of research bottomfishing gear is
unlikely to result in incidental take of marine mammals. These
regulations require PIFSC to document potential depredation of its
bottomfish research gear (catch loss) in the future, and increase
monitoring efforts when catch loss becomes apparent, in an effort to
better understand the potential risks of hooking to monk seals and
other marine mammals.
Table 5--Total Estimated Take Due to Gear Interaction, 2025-30 \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Authorized M/SI Level A take (all areas combined)
-----------------------------------------------------------------------------------------------------------------
Midwater trawl Hook-and-line Instrument deployments Sum all gear
------------------------------------------------------ and traps (trawl, hook-
Common name (stock) --------------------------- and-line, and Sum all gears
Calculated Total takes Calculated Total takes Calculated Total takes instruments and 5-year
average take over 5-year average take over 5-year average take over 5-year traps) annual authorization
per year period per year period per year period request
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale ............ ........... 0.2 1 ............ ........... 0.2 1
(Hawai[revaps]i stock)...............
Cuvier's Beaked whale (Hawai[revaps]i ............ ........... 0.2 1 ............ ........... 0.2 1
pelagic stock).......................
Bottlenose dolphin (Hawai[revaps]i 0.2 1 0.2 1 0.2 1 0.6 3
pelagic stock).......................
Bottlenose dolphin (All stocks, except 0.2 1 ............ ........... 0.2 1 0.4 2
above)...............................
False killer whale (Hawai[revaps]i ............ ........... 0.2 \c\ 1 ............ ........... 0.2 1
pelagic or unspecified \b\)..........
Humpback whale (Hawai[revaps]i stock). ............ ........... 0.2 1 0.2 1 0.4 2
Kogia spp. (Hawai[revaps]i stocks).... ............ ........... 0.2 1 ............ ........... 0.2 1
Pantropical spotted dolphin (all 0.2 1 0.2 1 0.2 1 0.6 3
stocks)..............................
Pygmy killer whale (Hawai[revaps]i ............ ........... 0.2 1 ............ ........... 0.2 1
stock )..............................
Risso's dolphin (Hawai[revaps]i stock) ............ ........... 0.2 1 ............ ........... 0.2 1
Rough-toothed dolphin (Hawai[revaps]i 0.2 1 0.2 1 0.2 1 0.6 3
stock)...............................
Rough-toothed dolphin (all stocks ............ ........... 0.2 1 0.2 1 0.4 2
except above)........................
Short-finned pilot whale ............ ........... 0.2 1 ............ ........... 0.2 1
(Hawai[revaps]i stock)...............
Sperm whale (Hawai[revaps]i stock )... ............ ........... 0.2 1 ............ ........... 0.2 1
Spinner dolphin (all stocks).......... 0.2 1 ............ ........... 0.2 1 0.4 2
Striped dolphin (all stocks).......... 0.2 1 0.2 1 ............ ........... 0.4 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Please see table 5 and preceding text for explanation of take estimates. Numbers of authorized takes are informed by area- and gear-specific
vulnerability. Because we have no specific information to indicate whether any given future interaction might result in M/SI versus Level A
harassment, we conservatively assume that all interactions equate to mortality for these fishing gear interactions.
\b\ Hawai[revaps]i pelagic stock is designated as strategic. ``Unspecified stock'' occurs on the high seas.
\c\ Longline research would only occur outside of FKW exclusion zone; potential take not in HARA, only within WCPRA.
Estimated Take Due to Acoustic Harassment
As described previously, we believe it is unlikely that PIFSC use
of active acoustic sources is realistically likely to cause Level B
harassment of marine mammals. However, per PISFC 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 all NMFS Science Center
incidental take regulations. In order to attempt to quantify the
potential for Level B harassment to occur, NMFS (including the PIFSC
and acoustics experts from other parts of 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
[[Page 21149]]
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.
Authorized takes from the use of active acoustic scientific sonar
sources (e.g., echosounders) are 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.
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.
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 available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the 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 PIFSC and other science centers
in previously issued Federal Register publications (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 PIFSC, 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 sound 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., 2011). Based on the best available science 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 microPascal ([mu]Pa) root mean square (rms) for continuous
(e.g., vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa
(rms) for intermittent (e.g., scientific sonar, seismic airgun)
sources.
The operating frequencies of active acoustic systems used by the
PIFSC range from 30-200 kHz (see table 2 in the Federal Register notice
of proposed rulemaking (86 FR 15298, March 22, 2021)). These
frequencies are within the very upper hearing range limits of baleen
whales (7 Hz to 35 kHz). The Simrad EM300 operates at a frequency of 30
kHz and the Simrad EK60 operates at 30-200 kHz. Baleen whales may be
able to detect sound from the Simrad EM300 and the Simrad EK60 when it
operates at the lower frequency. However, the beam pattern is extremely
narrow (1 degree) at that frequency. The Acoustic Doppler Current
Profiler (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 PIFSC
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. For use of these active acoustic
systems used during PIFSC research, NMFS uses the threshold is 160 dB
re 1 [mu]Pa (rms) as the best available science indicates the temporal
characteristics of a source are most influential in determining
behavioral impacts (Gomez et al., 2016), and it is NMFS long standing
practice to apply the 160 dB threshold to intermittent sources.
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 PIFSC was conducted, enabling a full assessment of all
sound sources used by the PIFSC and delineation of category 1 and
category 2 sources, the latter of which were carried forward for
analysis here. This auditing of the active acoustic sources also
enabled a determination of the predominant sources that, when
[[Page 21150]]
operated, would have sound footprints exceeding those from any other
simultaneously used sources. These sources were effectively those used
directly in acoustic propagation modeling to estimate the zones within
which the 160 dB rms received level would occur.
Many of these sources can be operated in different modes and with
different output parameters. In modeling their potential impact areas,
those features among those given previously in table 2 (e.g., lowest
operating frequency) of the proposed rulemaking 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.
Table 6--Effective Exposure Areas for Predominant Acoustic Sources Across Two Depth Strata
----------------------------------------------------------------------------------------------------------------
Effective exposure area:
Effective exposure area: Sea surface to depth at
Active acoustic system Sea surface to 200 m depth which sound is attenuated
(km\2\) to 160 dB SPL (km\2\) \a\
----------------------------------------------------------------------------------------------------------------
Simrad EK60........................................... 0.0082 0.0413
Simrad EM300.......................................... 0.112 3.7661
ADCP Ocean Surveyor................................... 0.0086 0.0187
----------------------------------------------------------------------------------------------------------------
\a\ Greater than 200 m depth.
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 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 7).
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 1000 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. These results, shown in table 7, were applied
differentially based on the typical vertical stratification of marine
mammals (see table 8).
Following the determination of effective sound exposure area for
transmissions considered in two dimensions, the next step was to
determine the effective volume of water ensonified at or above 160 dB
rms for the entirety of each survey. For each of the three predominant
sound sources, the volume of water ensonified is estimated as the
athwartship cross-sectional area (in square kilometers) of sound at or
above 160 dB rms (as illustrated in figure 6.1 of PIFSC's application)
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.
[[Page 21151]]
Table 7--Five-Year Total Line Kilometers for Each Vessel and Its Predominant Source Within Two Depth Strata
--------------------------------------------------------------------------------------------------------------------------------------------------------
Volume Volume
Average % Time Line km/ ensonified % Time Line km/ ensonified
Vessel--survey line kms Dominant source source dominant at 0-200 m source dominant at >200 m
per vessel dominant source (0- depth dominant source depth
(0-200m) 200m) (km\3\) (>200m) (>200m) (km\3\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hawaiian Archipelago Research Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hi[revaps]ialakai RAMP................. 36,000 Simrad EM 300............. 25 9,000 1,000.8 25 9,000 32,894.1
36,000 ADCP Ocean Surveyor....... 75 27,000 232.2 75 27,000 272.1
Hi[revaps]ialakai Coral Reef Benthic 17,000 Simrad EM 300............. 100 17,000 1,890.4 100 17,000 62,133.3
Mapping.
Oscar Elton Sette Kona IEA............. 5,000 EK60...................... 0 0 0 100 5,000 165.5
5,000 ADCP Ocean Surveyor....... 100 5,000 43.0 0 0 0
Oscar Elton Sette Insular Fish 3,000 EK60...................... 0 0 0 100 3,000 99.3
Abundance Estimation. 3,000 ADCP Ocean Surveyor....... 100 3,000 28.5 0 0 0
Hi[revaps]ialakai Deep Coral and Sponge 5,500 Simrad EM300.............. 100 5,500 611.6 100 5,500 20,102.0
Research.
Oscar Elton Sette Sampling Pelagic 4,000 EK60...................... 0 0 0 100 4,000 132.4
Stages of Insular Fish Species. 4,000 ADCP Ocean Surveyor....... 100 4,000 34.4 0 0 0
Oscar Elton Sette Cetacean Ecology 40,000 EK60...................... 0 0 0 100 40,000 1,324.0
Assessment. 40,000 ADCP Ocean Surveyor....... 100 40,000 344.0 0 0 0
Hi[revaps]ialakai or Oscar Elton Sette 2,500 EK60...................... 0 0 0 100 2,500 82.8
RAMP Gear & Instrument Development & 2500 ADCP Ocean Surveyor....... 100 2,500 21.5 0 0 0
Field Trials.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mariana Archipelago Research Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hi[revaps]ialakai RAMP................. 18,000 Simrad EK60............... 25 4,500 500.4 25 4,500 16,447.1
18,000 ADCP Ocean Surveyor....... 75 13,500 116.1 75 13,500 136.4
Hi[revaps]ialakai Coral Reef Benthic 8,600 Simrad EM 300............. 100 8,600 956.3 100 8,600 31,432.1
Mapping.
Oscar Elton Sette Insular Fish 2,000 EK60...................... 0 0 0 100 2,000 66.2
Abundance Estimation. 2,000 ADCP Ocean Surveyor....... 100 2,000 17.2 0 0 0
Hi[revaps]ialakai Deep Coral and Sponge 5,500 Simrad EM 300............. 100 5,500 611.6 100 5,500 20,102.0
Oscar Elton Sette Sampling Pelagic 2,000 EK60...................... 0 0 0 100 2,000 66.2
Stages of Insular Fish. 2,000 ADCP Ocean Surveyor....... 100 2,000 17.2 0 0 0
Oscar Elton Sette Cetacean Ecology 20,000 EK60...................... 0 0 0 100 20,000 662.0
Assessment. 20,000 ADCP Ocean Surveyor....... 100 20,000 172.0 0 0 0
Hi[revaps]ialakai Mariana Baseline 3,000 EK60...................... 0 0 0 100 3,000 99.3
Surveys. 3,000 ADCP Ocean Surveyor....... 100 3,000 25.8 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
American Samoa Research Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
NOAA ship Hi[revaps]ialakai RAMP....... 18,000 Simrad EK60............... 25 4,500 500.4 25 4,500 16,447.1
18,000 ADCP Ocean Surveyor....... 75 13,500 116.1 75 13,500 136.4
Hi[revaps]ialakai Coral Reef Benthic 8,600 Simrad EM 300............. 100 8,600 956.3 100 8,600 31,432.1
Mapping.
NOAA ship Oscar Elton Sette Insular 2,000 EK60...................... 0 0 0 100 2,000 66.2
Fish Abundance Estimation. ADCP Ocean Surveyor....... 100 2,000 17.2 0 0 0
Hi[revaps]ialakai Deep Coral and Sponge 500 Simrad EM 300............. 100 500 55.6 100 500 1,827.5
Research.
Oscar Elton Sette Sampling Pelagic 2,000 EK60...................... 0 0 0 100 2,000 66.2
Stage of Insular Fish. 2,000 ADCP Ocean Surveyor....... 100 2,000 17.2 0 0 0
Oscar Elton Sette Cetacean Ecology 20,000 EK60...................... 0 0 0 100 20,000 662.0
Assessment. 20,000 ADCP Ocean Surveyor....... 100 20,000 172.0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Western and Central Pacific Research Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hi[revaps]ialakai RAMP................. 18,000 Simrad EK60............... 25 4,500 500.4 25 4,500 16,447.1
18,000 ADCP Ocean Surveyor....... 75 13,500 116.1 75 13,500 136.4
Hi[revaps]ialakai Coral Reef Benthic 8,600 Simrad EM 300............. 100 8,600 956.3 100 8,600 31,432.1
Mapping.
Oscar Elton Sette Oceanographic........ 7,000 EK60...................... 0 0 0 100 7,000 231.7
7,000 ADCP Ocean Surveyor....... 100 7,000 60.2 0 0 0
Oscar Elton Sette Insular Fish 2,000 EK60...................... 0 0 0 100 2,000 66.2
Abundance Estimation. 2,000 ADCP Ocean Surveyor....... 100 2,000 17.2 0 0 0
Hi[revaps]ialakai Deep Coral and Sponge 500 Simrad EM 300............. 100 500 55.6 100 500 1,827.5
Oscar Elton Sette Sampling Pelagic 2,000 EK60...................... 0 0 0 100 2,000 66.2
Stages of Insular Fish. 2,000 ADCP Ocean Surveyor....... 100 2,000 17.2 0 0 0
[[Page 21152]]
Oscar Elton Sette Cetacean Ecology 20,000 EK60...................... 0 0 0 100 20,000 662.0
Assessment. 20,000 ADCP Ocean Surveyor....... 100 20,000 172.0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Mammal Densities--One of the primary limitations to
traditional estimates of behavioral harassment from acoustic exposure
is the assumption that animals are uniformly distributed in time and
space across very large geographical areas, such as those being
considered here. There is ample evidence that this is in fact not the
case, and marine species are highly heterogeneous in terms of their
spatial distribution, largely as a result of species-typical
utilization of heterogeneous ecosystem features. Some more
sophisticated modeling efforts have attempted to include species-
typical behavioral patterns and diving parameters in movement models
that more adequately assess the spatial and temporal aspects of
distribution and thus exposure to sound. While simulated movement
models were not used to mimic individual diving or aggregation
parameters in the determination of animal density in this estimation,
the vertical stratification of marine mammals based on known or
reasonably assumed diving behavior was integrated into the density
estimates used.
First, typical two-dimensional marine mammal density estimates
(animals/km\2\) were obtained from various sources for each ecosystem
area. These were estimated from marine mammal SARs and other sources
(please see table 6-5 of PIFSC's application). There are a number of
caveats associated with these estimates:
(1) They are often calculated using visual sighting data collected
during one season rather than throughout the year. The time of year
when data were collected and from which densities were estimated may
not always overlap with the timing of PIFSC fisheries surveys (detailed
previously in Detailed Description of Activities).
(2) The densities used for purposes of estimating acoustic
exposures do not take into account the patchy distributions of marine
mammals in an ecosystem, at least on the moderate to fine scales over
which they are known to occur. Instead, animals are considered evenly
distributed throughout the assessed area, and seasonal movement
patterns are not taken into account.
(3) Marine mammal density information is in many cases based on
limited historical surveys and may be incomplete or absent for many
regions of the vast geographic area addressed by PIFSC fisheries
research. As a result density estimates for some species/stocks in some
regions are based on the best available data for other regions and/or
similar stocks.
In addition, and to account for at least some coarse differences in
marine mammal diving behavior and the effect this has on their likely
exposure to these kinds of often highly directional sound sources, a
volumetric density of marine mammals of each species was determined.
This value is estimated as the abundance averaged over the two-
dimensional geographic area of the surveys and the vertical range of
typical habitat for the population. Habitat ranges were categorized in
two generalized depth strata (0-200 m and greater than 200 m) based on
gross differences between known generally surface-associated and
typically deep-diving marine mammals (e.g., Reynolds and Rommel, 1999;
Perrin et al., 2009). Animals in the shallow-diving stratum were
assumed, on the basis of empirical measurements of diving with
monitoring tags and reasonable assumptions of behavior based on other
indicators, to spend a large majority of their lives (i.e., greater
than 75 percent) at depths shallower than 200 m. Their volumetric
density and thus exposure to sound is therefore limited by this depth
boundary. Species in the deeper diving stratum were reasonably
estimated to dive deeper than 200 m and spend 25 percent or more of
their lives at these greater depths. Their volumetric density and thus
potential exposure to sounds up to the 160 dB rms level is extended
from the surface to the depth at which this received level condition
occurs. Their volumetric density and thus potential exposure to sound
at or above the 160 dB rms threshold is extended from the surface to
500 m, (i.e., nominal maximum water depth in regions where these
surveys occur).
The volumetric densities are estimates of the three-dimensional
distribution of animals in their typical depth strata. For shallow-
diving species the volumetric density is the area density divided by
0.2 km (i.e., 200 m). For deeper diving species, the volumetric density
is the area density divided by a nominal value of 0.5 km (i.e., 500 m).
The two-dimensional and resulting three-dimensional (volumetric)
densities for each species in each ecosystem area are shown in table 8.
Table 8--Volumetric Densities Calculated for Each Species in the PIFSC Research Areas
----------------------------------------------------------------------------------------------------------------
Typical dive depth strata
Species (common name) ---------------------------------- Area density (#/ Volumetric
0-200 m >200 m km\2\) density (#/km\3\)
----------------------------------------------------------------------------------------------------------------
Hawaiian Archipelago Research Area
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin............. X ............... 0.02332 0.1166
Striped dolphin......................... X ............... 0.025 0.125
Spinner dolphin--all insular............ X ............... 0.009985 0.0499255
Rough-toothed dolphin................... X ............... 0.02963 0.14815
Bottlenose dolphin...................... X ............... 0.00899 0.04495
Risso's dolphin......................... ............... X 0.00474 0.00948
Fraser's dolphin........................ X ............... 0.02104 0.1052
[[Page 21153]]
Melon-headed whale...................... X ............... 0.00354 0.0177
Melon-headed whale--Kohala stock........ X ............... 0.001415 0.0070734
Pygmy killer whale...................... X ............... 0.00435 0.02175
False killer whale--pelagic............. ............... X 0.0006 0.0012
False killer whale--MHI insular......... ............... X 0.0009 0.0018
False killer whale--NWHI................ ............... X 0.0014 0.0028
Short-finned pilot whale................ ............... X 0.00797 0.01594
Killer whale............................ X ............... 0.00006 0.0003
Sperm whale............................. ............... X 0.00186 0.00372
Pygmy sperm whale....................... ............... X 0.00291 0.00582
Dwarf sperm whale....................... ............... X 0.00714 0.01428
Blainville's beaked whale............... ............... X 0.00086 0.00172
Cuvier's beaked whale................... ............... X 0.0003 0.0006
Longman's beaked whale.................. ............... X 0.00311 0.00622
Unidentified Mesoplodon................. ............... X 0.00189 0.00378
Unidentified beaked whale............... ............... X 0.00117 0.00234
Hawaiian monk seal...................... X ............... 0.003741 0.0187042
----------------------------------------------------------------------------------------------------------------
Mariana Archipelago Research Area
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin............. X ............... 0.0226 0.113
Striped dolphin......................... X ............... 0.00616 0.0308
Spinner dolphin......................... X ............... 0.009985 0.0499255
Rough-toothed dolphin................... X ............... 0.00314 0.0157
Bottlenose dolphin...................... X ............... 0.00029 0.00145
Risso's dolphin......................... ............... \1\ X 0.00021 0.00042
Fraser's dolphin........................ X ............... 0.02104 0.1052
Melon-headed whale...................... X ............... 0.00428 0.0214
Pygmy killer whale...................... X ............... 0.00014 0.0007
False killer whale--pelagic............. ............... \1\ X 0.00111 0.00222
Short-finned pilot whale................ ............... X 0.00159 0.00318
Killer whale............................ X ............... 0.00006 0.0003
Sperm whale............................. ............... X 0.00123 0.00246
Pygmy sperm whale....................... ............... X 0.00291 0.00582
Dwarf sperm whale....................... ............... X 0.00714 0.01428
Blainville's beaked whale............... ............... X 0.00086 0.00172
Cuvier's beaked whale................... ............... X 0.0003 0.0006
Unidentified beaked whale............... ............... X 0.00117 0.00234
----------------------------------------------------------------------------------------------------------------
American Samoa Research Area
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin............. X ............... 0.02332 0.1166
Spinner dolphin......................... X ............... 0.00475 0.02375
Rough-toothed dolphin................... X ............... 0.02963 0.14815
Bottlenose dolphin...................... X ............... 0.00899 0.04495
False killer whale...................... X ............... 0.00090 0.0045
Short-finned pilot whale................ ............... X 0.00797 0.01594
Killer whale............................ X ............... 0.00006 0.0003
Sperm whale............................. ............... X 0.00186 0.00372
Dwarf sperm whale....................... ............... X 0.00714 0.01428
Cuvier's beaked whale................... ............... X 0.00030 0.0006
Unidentified beaked whale............... ............... X 0.00117 0.00234
----------------------------------------------------------------------------------------------------------------
Western and Central Pacific Research Area
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin............. X ............... 0.02332 0.1166
Striped dolphin......................... X ............... 0.025 0.125
Spinner dolphin......................... X ............... 0.011095 0.055475
Rough-toothed dolphin................... X ............... 0.02963 0.14815
Bottlenose dolphin...................... X ............... 0.00899 0.04495
Risso's dolphin......................... ............... \1\ X 0.00474 0.00948
Fraser's dolphin........................ X ............... 0.02104 0.1052
Melon-headed whale...................... X ............... 0.00354 0.0177
Pygmy killer whale...................... X ............... 0.00435 0.02175
False killer whale...................... ............... \1\ X 0.00102 0.00204
Short-finned pilot whale................ ............... X 0.00797 0.01594
Killer whale............................ X ............... 0.00006 0.0003
Sperm whale............................. ............... X 0.00186 0.00372
Pygmy sperm whale....................... ............... X 0.00291 0.00582
Dwarf sperm whale....................... ............... X 0.00714 0.01428
Blainville's beaked whale............... ............... X 0.00086 0.00172
[[Page 21154]]
Cuvier's beaked whale................... ............... X 0.0003 0.0006
Deraniyagala's beaked whale............. ............... X 0.0003 0.0006
Longman's beaked whale.................. ............... X 0.00311 0.00622
Unidentified beaked whale............... ............... X 0.00117 0.00234
----------------------------------------------------------------------------------------------------------------
\1\ NMFS has classified these species as deep diving in the PIFSC research areas, which is different from their
classification as shallow-diving species by the other NMFS Fisheries Science Centers. These classifications of
deep-diving are based on unpublished data from telemetry studies including depth of dive and stomach contents
of deep-diving prey items (E. Oleson, personal communication, November 10, 2015).
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 (tables 7, 8 and 9). The
general take estimate equation for each source in each depth stratum is
density * (ensonified area * line kms). To illustrate, we use the ADCP
Ocean Surveyor in the HARA and the pantropical spotted dolphin as an
example.
(1) ADCP Ocean Surveyor ensonified area (0-200 m) = 0.0086 km\2\.
(2) Total Line kms = 81,500 km.
(3) Pantropical spotted dolphin density (0-200 m) = 0.11660
dolphins/km\3\.
(4) Estimated exposures to sound >=160 dB rms = 0.11660 pantropical
spotted dolphin/km\3\ * (0.0086 km\2\ * 81,500 km) = 81.72 (rounded up)
= 82 estimated pantropical spotted dolphin exposures to SPLs >=160 dB
rms resulting from use of the ADCP Ocean Surveyor in the HARA.
Totals in tables 9-12 represent sums across all relevant surveys
and sources rounded up to the nearest whole number. Note that take of
baleen whales is not predicted due to the lack of overlap in their
hearing range with the operating frequencies of PIFSC acoustic sources.
Table 9--Densities and Estimated Source-, Stratum-, and Species-Specific 5-Year Estimates of Level B Harassment in the HARA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Level B harassment Estimated Level B
Volumetric (numbers of animals) in 0-200m harassment in >200m
Species/stocks density (#/ depth stratum depth stratum Total take
km\3\) ------------------------------------------------------------ \a\
EK60 EM300 ADCP EK60 EM300
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin....................................... 0.11660 0 408 82 0 0 490
Striped dolphin................................................... 0.12500 0 438 88 0 0 525
Spinner dolphin--all insular...................................... 0.04993 0 175 35 0 0 210
Rough-toothed dolphin............................................. 0.14815 0 519 104 0 0 623
Bottlenose dolphin (all stocks)................................... 0.04495 0 157 32 0 0 189
Risso's dolphin................................................... 0.00948 0 33 7 17 1,091 1,148
Fraser's dolphin.................................................. 0.10520 0 368 74 0 0 442
Melon-headed whale................................................ 0.01770 0 62 12 0 0 74
Melon-headed whale--Kohala stock.................................. 0.00707 0 25 5 0 0 30
Pygmy killer whale................................................ 0.02175 0 76 15 0 0 91
False killer whale--pelagic....................................... 0.00120 0 4 1 2 138 145
False killer whale--MHI insular................................... 0.00180 0 6 1 3 207 218
False killer whale--NWHI.......................................... 0.00280 0 10 2 5 322 339
Short-finned pilot whale.......................................... 0.01594 0 56 11 29 1,835 1,931
Killer whale...................................................... 0.00030 0 1 0 0 0 \b\ 6
Sperm whale....................................................... 0.00372 0 13 3 7 428 451
Pygmy sperm whale................................................. 0.00582 0 20 4 10 670 705
Dwarf sperm whale................................................. 0.01428 0 50 10 26 1,644 1,730
Blainville's beaked whale......................................... 0.00172 0 6 1 3 198 208
Cuvier's beaked whale............................................. 0.00060 0 2 0 1 69 73
Longman's beaked whale............................................ 0.00622 0 22 4 11 716 753
Unidentified Mesoplodon........................................... 0.00378 0 13 3 7 435 458
Unidentified beaked whale......................................... 0.00234 0 8 2 4 269 283
Hawaiian monk seal................................................ 0.01870 0 66 13 0 0 79
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes.
\b\ Where calculated take over 5 years is less than typical group size, authorized take has been increased to mean group size (U.S. Navy 2017).
[[Page 21155]]
Table 10--Densities and Estimated Source-, Stratum-, and Species-Specific 5-Year Estimates of Level B Harassment in the MARA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Level B harassment Estimated Level B harassment in
Volumetric (numbers of animals) in 0-200m >200m depth stratum
Species density (#/ depth stratum --------------------------------- Total take
km\3\) --------------------------------- \a\
EK60 EM300 ADCP EK60 EM300 ADCP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin................................. 0.11300 0 234 37 0 0 0 271
Striped dolphin............................................. 0.03080 0 64 10 0 0 0 74
Spinner dolphin............................................. 0.04993 0 103 17 0 0 0 120
Rough-toothed dolphin....................................... 0.01570 0 32 5 0 0 0 38
Bottlenose dolphin.......................................... 0.00145 0 3 0 0 0 0 \b\ 6
Risso's dolphin............................................. 0.00042 0 1 0 0 29 0 30
Fraser's dolphin............................................ 0.10520 0 218 35 0 0 0 \b\ 283
Melon-headed whale.......................................... 0.02140 0 44 7 0 0 0 \b\ 73
Pygmy killer whale.......................................... 0.00070 0 1 0 0 0 0 \b\ 7
False killer whale (pelagic)................................ 0.00222 0 5 1 2 151 0 159
Short-finned pilot whale.................................... 0.00318 0 7 1 3 216 0 227
Killer whale................................................ 0.00030 0 1 0 0 0 0 \b\ 4
Sperm whale................................................. 0.00246 0 5 1 2 167 0 175
Pygmy sperm whale........................................... 0.00582 0 12 2 5 396 1 416
Dwarf sperm whale........................................... 0.01428 0 30 5 13 971 2 1,020
Blainville's beaked whale................................... 0.00172 0 4 1 2 117 0 123
Cuvier's beaked whale....................................... 0.00060 0 1 0 1 41 0 43
Unidentified beaked whale................................... 0.00234 0 5 1 2 159 0 167
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes.
\b\ Where calculated take over 5 years is less than typical group size, authorized take has been increased to mean group size (U.S. Navy 2017).
Table 11--Densities and Estimated Source-, Stratum-, and Species-Specific 5-Year Estimates of Level B Harassment in the ASARA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Level B harassment Estimated Level B harassment in
Volumetric (numbers of animals) in 0-200m >200m depth stratum
Species density (#/ depth stratum --------------------------------- Total take
km\3\) --------------------------------- \a\
EK60 EM300 ADCP EK60 EM300 ADCP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin................................. 0.11660 0 176 38 0 0 0 214
Spinner dolphin............................................. 0.02375 0 36 8 0 0 0 44
Rough-toothed dolphin....................................... 0.14815 0 224 48 0 0 0 272
Bottlenose dolphin.......................................... 0.04495 0 68 14 0 0 0 82
False killer whale.......................................... 0.00450 0 7 1 0 0 0 \b\ 10
Short-finned pilot whale.................................... 0.01594 0 24 5 13 792 2 836
Killer whale................................................ 0.00030 0 0 0 0 0 0 \b\ 4
Sperm whale................................................. 0.00372 0 6 1 3 185 1 195
Dwarf sperm whale........................................... 0.01428 0 22 5 11 710 2 749
Cuvier's beaked whale....................................... 0.00060 0 1 0 0 30 0 31
Unidentified beaked whale................................... 0.00234 0 4 1 2 116 0 123
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes.
\b\ Where calculated take over 5 years is less than typical group size, authorized take has been increased to mean group size (U.S. Navy 2017).
Table 12--Densities and Estimated Source-, Stratum-, and Species-Specific 5-Year Estimates of Level B Harassment in the WCPRA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Level B harassment Estimated Level B harassment in
Volumetric (numbers of animals) in 0-200m >200m depth stratum
Species density (#/ depth stratum --------------------------------- Total Take
km \3\) --------------------------------- \a\
EK60 EM300 ADCP EK60 EM300 ADCP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin................................. 0.11660 0 176 45 0 0 0 221
Striped dolphin............................................. 0.12500 0 189 48 0 0 0 237
Spinner dolphin............................................. 0.05548 0 84 21 0 0 0 105
Rough-toothed dolphin....................................... 0.14815 0 224 57 0 0 0 281
Bottlenose dolphin.......................................... 0.04495 0 68 17 0 0 0 85
Risso's dolphin............................................. 0.00948 0 14 4 10 471 1 500
Fraser's dolphin............................................ 0.10520 0 159 40 0 0 0 283\b\
Melon-headed whale.......................................... 0.01770 0 27 7 0 0 0 73\b\
Pygmy killer whale.......................................... 0.02175 0 33 8 0 0 0 41
[[Page 21156]]
False killer whale.......................................... 0.00204 0 3 1 2 101 0 107
Short-finned pilot whale.................................... 0.01594 0 24 6 16 792 2 841
Killer whale................................................ 0.00030 0 0 0 0 0 0 4\b\
Sperm whale................................................. 0.00372 0 6 1 4 185 1 197
Pygmy sperm whale........................................... 0.00582 0 9 2 6 289 1 307
Dwarf sperm whale........................................... 0.01428 0 22 5 15 710 2 754
Blainville's beaked whale................................... 0.00172 0 3 1 2 85 0 91
Cuvier's beaked whale....................................... 0.00060 0 1 0 1 30 0 32
Deraniyagala's beaked whale................................. 0.00060 0 1 0 1 30 0 32
Longman's beaked whale...................................... 0.00622 0 9 2 6 309 1 328
Unidentified beaked whale................................... 0.00234 0 4 1 2 116 0 123
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes.
\b\ Where calculated take over 5 years is less than typical group size, authorized take has been increased to mean group size (U.S. Navy 2018)
Table 13--Total Authorized Annual and 5-Year Takes by Level B Harassment From Acoustic Disturbance
----------------------------------------------------------------------------------------------------------------
All areas 5-year total All areas average
Species take by Level B annual take by Level B
harassment harassment \a\
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale..................................... 422 84
Bottlenose dolphin............................................ 362 72
Cuvier's beaked whale......................................... 179 36
Deraniyagala's beaked whale................................... 32 6
Dwarf sperm whale............................................. 4,253 851
False killer whale............................................ 978 196
Fraser's dolphin.............................................. 1,008 202
Hawaiian monk seal............................................ 79 16
Killer whale.................................................. 18 4
Longman's beaked whale........................................ 1,081 216
Melon-headed whale............................................ 250 50
Pantropical spotted dolphin................................... 1,196 239
Pygmy killer whale............................................ 139 28
Pygmy sperm whale............................................. 1,428 286
Risso's dolphin............................................... 1,678 336
Rough-toothed dolphin......................................... 1,214 243
Short-finned pilot whale...................................... 3,835 767
Sperm whale................................................... 1,018 204
Spinner dolphin............................................... 479 96
Striped dolphin............................................... 836 167
Unidentified beaked whale..................................... 696 139
Unidentified Mesoplodon....................................... 458 92
----------------------------------------------------------------------------------------------------------------
\a\ Average annual take calculated by dividing total 5-year take by five and rounding to nearest whole number.
Estimated Take Due to Physical Disturbance
Take due to physical disturbance could potentially happen, as it is
likely that some Hawaiian monk seals will move or flush from known
haul-outs into the water in response to the presence or sound of PIFSC
vessels or researchers. In the MHI and the NWHI, there are numerous
sites used by the Hawaiian monk seal to haul out (sandy beaches, rocky
outcroppings, exposed reefs) where the physical presence and sounds of
researchers walking by or passing nearby in small boats may disturb
animals present. Disturbance to Hawaiian monk seals would occur in the
HARA only. Physical disturbance would result in no greater than Level B
harassment. Behavioral responses may be considered according to the
scale shown in table 14 and based on the method developed by Mortenson
(1996). We consider responses corresponding to levels 2-3 to constitute
Level B harassment.
Table 14--Levels of Pinniped Behavioral 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.
[[Page 21157]]
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 observations of disturbance levels 2 and 3 are recorded as takes.
The draft 2023 SAR for Hawaiian monk seal estimates the total
abundance in the Hawaiian archipelago is 1,564 seals (CV = 0.05). Not
all of these seals haul out at the same time or at the same places, and
therefore it is difficult to predict if any monk seals will be present
at any particular research location at any point in time. For MTBAP
activities, we use anecdotal information from the past 5 years on monk
seal presence during turtle surveys, but for the projects where seal
observations have not been recorded in the past, the best way to
estimate the amount of Level B harassment from those projects (i.e.,
Reef Assessment and Monitoring Program (RAMP) and Marine Debris
Research and Removal (MDRR)) would be to approximate the number of
seals hauled out at any point in time across the HARA and the
probability that a researcher would be close enough to actually disturb
the seal.
Since 2018, MTBAP has been systematically recording any potential
takes of monk seals during turtle survey activities in the NWHI. This
data includes the total number of seals present, and the number of
seals that reacted to the turtle research activities by level of
disturbance (table 14). On any given survey, the maximum number of
seals that were observed at one time over 664 surveys was 52 and the
average number of monk seals reacting to the presence of researchers at
levels 2-3 (table 14) in 1 year was 29 seals (NMFS unpublished data).
The greatest number of levels 2 and 3 disturbances of monk seal in
1 year was 62 in 2021; however the next highest annual disturbance
number was 28 in 2020 (NMFS unpublished data). 2021 was a peak sea
turtle nesting season and had a long field season (6 months, compared
to a typical 4 month season). In comparison, 2018 was also a peak sea
turtle nesting season that had a similarly long field season, but had
only 20 records of level 2-3 reactions. Given these data, and allowing
for a buffer for seals at other islands where sea turtle research
activities occur, we would not expect take of monk seals to exceed more
than approximately 70 instances of Level B harassment in any given year
due to MTBAP research activities. This estimate of potential annual
monk seal take resulting from MTBAP research activities is small
relative to the annual take by Level B harassment of monk seals from
other PIFSC research, as described in the 2021 proposed rule and
detailed in the following, and we anticipate that the total described
below would be inclusive of the amount anticipated to result from MTBAP
activities.
Parrish et al. (2002) estimated approximately one-third of the
total population may be hauled out at any point in time. Assuming that
all seals have an equal probability of hauling out anywhere in the
archipelago, one-third of 1,564 is approximately 500 individual monk
seals. Given that the two surveys with the highest probability of
disturbing monk seals, aside from MTBAP research, (i.e., RAMP and MDRR)
systematically circumnavigate all the islands and atolls when they are
conducted, we could estimate the annual maximum number of Level B
harassment takes as 1,000 during the years when these are conducted.
Over the course of 5 years, this would be approximately 5,000 potential
instances of Level B harassment if all the surveys took place every
year at every location across the HARA. However, RAMP surveys occur in
the HARA approximately twice every 5 years and MDRR Surveys are rarely
funded to a level that would support complete circumnavigation of the
HARA each year. In addition, during some RAMP surveys the location of
marine debris are identified (and recorded), thus precluding the need
for marine debris identification later (only removal). Therefore, the
approximately 5,000 potential disturbances over 5 years can be reduced
by assuming that the maximum annual harassment would occur on only 2 of
5 years, i.e., to approximately 2,000 potential disturbances over 5
years. Furthermore, not all small boat operations during the surveys
for these 2 programs are close enough to the shoreline to actually
cause a disturbance like those caused from MTBAP activities (e.g., a
seal may be hauled out on a beach in a bay but the shallow fringing
reef may keep the RAMP or MDRR small boats from getting within half of
a mile from shore). Additionally, all researchers implement avoidance
and minimization measures while carrying out the surveys to further
reduce the likelihood of disturbing monk seals. The approximately 2,000
potential disturbances can realistically be expected to be reduced
through avoidance or sheer geographical separation by at least 50
percent based on prior experience of the PIFSC. Therefore, the PIFSC
has requested, and NMFS is authorizing, 1,000 instances of Level B
harassment of Hawaiian monk seals due to the physical presence of
researchers over the 5-year authorization period, or an average of 200
takes by Level B harassment per year. We anticipate that this estimate
would be inclusive of the takes resulting from MTBAP activities.
Mitigation
In order to issue an incidental take authorization under Section
101(a)(5)(A) or (D) of the MMPA, NMFS must set forth the permissible
methods of taking pursuant to the specified 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 such
species or stock'' for certain subsistence uses. 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 such
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, 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
[[Page 21158]]
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, personnel safety, and practicality of implementation.
Mitigation for Marine Mammals and Their Habitat
The PIFSC has invested significant time and effort in identifying
technologies, practices, and equipment to minimize the impact of the
planned 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 PIFSC. In addition, the PIFSC is actively conducting
research to determine if gear modifications are effective at reducing
take from certain types of gear; any potentially effective and
practicable gear modification mitigation measures will be discussed as
research results are available as 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
PIFSC 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 and are considered to be at risk of interaction
with the research gear, then the sampling station is either moved or
canceled or the activity is suspended until the marine mammals are no
longer in the area. On smaller vessels, the 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 PIFSC 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 PIFSC 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 PIFSC survey effort is conducted aboard cooperative platforms
(i.e., non-NOAA vessels), ultimate responsibility and decision
authority again rests with non-PIFSC 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
PIFSC survey effort is composed, in part or whole, of PIFSC staff and
is led by a CS. Therefore, because the PIFSC--not OMAO or any other
entity that may have authority over survey platforms used by PIFSC--is
the applicant to whom any incidental take authorization issued under
the authority of these regulations would be issued, we require that the
PIFSC 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. PIFSC 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 PIFSC will coordinate with the local Pacific Islands 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 (i.e., baleen whale or sperm
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 888-256-9840.
Vessel Speed--Vessel speed during active sampling rarely exceeds 5
kt, with typical speeds being 2-4 kt. Transit speeds vary from 6-14 kt
but average 10 kt. These low vessel speeds minimize the potential for
ship strike (see Potential Effects of the Specified Activity on Marine
Mammals and Their Habitat for an in-depth discussion of ship strike).
In addition, as a standard operating practice, PIFSC maintains a 100-
yard (91-m) distance between research vessels and large whales whenever
and wherever it conducts fisheries research activities. At any time
during a survey or in transit, if a crew member or designated marine
mammal observer standing watch sights marine mammals that may intersect
with the vessel course that individual will immediately communicate the
presence of marine mammals to the bridge for appropriate course
alteration or speed reduction, as possible, to avoid incidental
collisions.
Gears Not Subject to Specific Measures--The PIFSC deploys a wide
variety of gear to sample the marine environment during all of their
research
[[Page 21159]]
cruises. Many of these types of gear (e.g., plankton nets, video camera
and remotely-operated vehicle (ROV) deployments) are not considered to
pose any risk to marine mammals and are therefore not subject to
specific mitigation measures. However, at all times when the PIFSC is
conducting survey operations at sea, the OOD and/or CS and crew will
monitor for any unusual circumstances that may arise at a sampling site
and use best professional judgment to avoid any potential risks to
marine mammals during use of all research equipment.
Handling Procedures--Handling procedures are those taken to return
a live animal to the sea or process a dead animal. The PIFSC 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 PIFSC 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 must be
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 must be released without removing them from the water
if possible, and data collection must be conducted in such a manner as
not to delay release of the animal(s) or endanger the crew. PIFSC is
responsible for training PIFSC 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.
Trawl Survey Visual Monitoring and Operational Protocols
Visual monitoring protocols, described above, are an integral
component of trawl mitigation protocols. Observation of marine mammal
presence and behaviors in the vicinity of PIFSC trawl survey operations
allows for the application of professional judgment in determining the
appropriate course of action to minimize the incidence of marine mammal
gear interactions.
The OOD, CS or other designated member of the scientific party, and
crew standing watch on the bridge visually scan surrounding waters with
the naked eye and rangefinding binoculars (or monocular) for marine
mammals prior to, during, and until completion of all trawl operations.
Some sets may be made at night or in other limited visibility
conditions, when visual observation may be conducted using the naked
eye, if vessel lighting is used.
Most research vessels engaged in trawling will have their station
in view for 15 minutes or 2 nmi prior to reaching the station,
depending upon the sea state and weather. Many vessels will inspect the
tow path before deploying the trawl gear, adding another 15 minutes of
observation time and gear preparation prior to deployment. Personnel on
watch must monitor the station for 30 minutes prior to deploying the
trawl. If personnel on watch observe marine mammals, they must
immediately alert the OOD and CS as to their best estimate of the
species, quantity, distance, bearing, and direction of travel relative
to the ship's position. If any marine mammals are sighted around the
vessel during the 30-minute pre-deployment monitoring period before
setting gear, the vessel must either remain in place and wait to set
until no marine mammals are sighted in a further 10-minute observation
period, or move away from the animals to a different section of the
sampling area if the animals appear to be at risk of interaction with
the gear. This is what is referred to as the ``move-on'' rule.
If marine mammals are observed at or near the station, the CS and
the vessel operator will determine the best strategy, consistent with
the regulations set forth below, to avoid potential takes based on the
species encountered, their numbers and behavior, their position and
vector relative to the vessel, and other factors. For instance, a whale
transiting through the area and heading away from the vessel may not
require any move, or may require only a short move from the initial
sampling site, while a pod of dolphins gathered around the vessel may
require a longer move from the initial sampling site or possibly
cancellation of the station if the dolphins follow the vessel. After
moving on, if marine mammals are still visible from the vessel and
appear to be at risk, the CS or OOD may decide, in consultation with
the vessel operator, to move again or to skip the station. In many
cases, the survey design can accommodate sampling at an alternate site.
Gear would not be deployed if marine mammals have been sighted from the
ship during the required observation period unless those animals do not
appear to be in danger of interactions with the gear, as determined by
the judgment of the CS and vessel operator. The efficacy of the ``move-
on'' rule is limited during nighttime or other periods of limited
visibility, although operational lighting from the vessel illuminates
the water in the immediate vicinity of the vessel during gear setting
and retrieval. In these cases, it is again the judgment of the CS or
vessel operator as based on experience and in consultation with the
vessel operator to exercise due diligence and to decide on appropriate
course of action to avoid interactions between marine mammals and
sampling gear.
Once the trawl net is in the water, the OOD, CS or other designated
scientist, and/or crew standing watch continue to monitor the waters
around the vessel and maintain a lookout for marine mammals as
environmental conditions allow (as noted previously, visibility can be
limited for various reasons). If marine mammals are sighted before the
gear is fully retrieved, the OOD, in consultation with the CS and
vessel operator as necessary, shall take action informed by
professional judgments to avoid taking marine mammals. 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. If marine
mammals are sighted during haul-back operations, there is the potential
for entanglement during retrieval of the net, especially when the trawl
doors have been retrieved and the net is near the surface and no longer
under tension. The risk of entanglement may be reduced if the trawling
continues and the haul-back is delayed until after the marine mammal
has lost interest in the gear or left the area. The appropriate course
of action to minimize the risk of incidental take is informed by the
professional judgment of the OOD, vessel operator, and the CS based on
all circumstances, even if the choices compromise the value of the data
collected at the station. The PIFSC must retrieve trawl gear
immediately if marine mammals are believed to be captured/entangled in
a net, line, or associated gear and follow disentanglement protocols.
We recognize that it is not possible to dictate in advance the
exact course of action that the OOD or CS should take
[[Page 21160]]
in any given event involving the presence of marine mammals in
proximity to an ongoing trawl tow, given the sheer number of potential
variables, combinations of variables that may determine the appropriate
course of action, and the need to prioritize human safety in the
operation of fishing gear at sea. Nevertheless, PIFSC will account for
all factors that shape both successful and unsuccessful decisions, and
these details will be fed back into PIFSC training efforts and
ultimately help to refine the best professional judgment that
determines the course of action taken in future scenarios (see further
discussion in Monitoring and Reporting).
If trawling operations have been suspended because of the presence
of marine mammals, the vessel will resume trawl operations (when
practicable) only when the animals are believed to have departed the
area. This decision is at the discretion of the OOD/CS and is dependent
on the situation. PIFSC shall conduct trawl operations as soon as is
practicable upon arrival at the sampling station following visual
monitoring pre-deployment. PIFSC shall implement standard survey
protocols to minimize potential for marine mammal interactions,
including maximum tow durations at target depth and maximum tow
distance, and shall carefully empty the trawl as quickly as possible
upon retrieval. Standard tow durations for midwater trawls are between
2 and 4 hours as target species (e.g., pelagic stage eteline snappers)
are relatively rare, and therefore longer haul times are necessary to
acquire the appropriate scientific samples. However, trawl hauls will
be terminated and the trawl retrieved upon the determination and
professional judgment of the officer on watch, in consultation with the
CS or other designated scientist and other experienced crew as
necessary, that this action is warranted to avoid an incidental take of
a marine mammal.
Longline Survey Visual Monitoring and Operational Protocols
Visual monitoring requirements for all longline surveys are similar
to the general protocols described above for trawl surveys. Please see
that section for full details of the visual monitoring protocol and the
move-on rule mitigation protocol. In summary, requirements for longline
surveys are to: (1) conduct visual monitoring prior to arrival on
station; (2) implement the move-on rule if marine mammals are observed
within the area around the vessel and may be at risk of interacting
with the vessel or gear; (3) deploy gear as soon as possible upon
arrival on station (depending on presence of marine mammals); and (4)
maintain visual monitoring effort throughout deployment and retrieval
of the longline gear. As was described for trawl gear, the OOD, CS, or
personnel on watch will use best professional judgment to minimize the
risk to marine mammals from potential gear interactions during
deployment and retrieval of gear. If marine mammals are detected during
setting operations and are considered to be at risk, immediate
retrieval or suspension of operations may be warranted. If operations
have been suspended because of the presence of marine mammals, the
vessel will resume setting (when practicable) only when the animals are
believed to have departed the area. If marine mammals are detected
during retrieval operations and are considered to be at risk, haul-back
may be postponed. The PIFSC must retrieve gear immediately if marine
mammals are believed to be captured/entangled in a net, line, or
associated gear and follow disentanglement protocols. These decisions
are at the discretion of the OOD/CS and are dependent on the situation.
The 1994 amendments to the MMPA tasked NMFS with establishing
monitoring programs to estimate mortality and serious injury of marine
mammals incidental to commercial fishing operations and to develop Take
Reduction Plans (TRPs) in order to reduce commercial fishing takes of
strategic stocks of marine mammals below PBR. The False Killer Whale
Take Reduction Plan (FKWTRP) was finalized in 2012 to reduce the level
of mortality and serious injury of false killer whales in Hawaii-based
longline fisheries for tuna and billfish (77 FR 71260, November 29,
2012). Regulatory measures in the FKWTRP include gear requirements,
prohibited areas, training and certification in marine mammal handling
and release, and posting of NMFS-approved placards on longline vessels.
PIFSC does not conduct fisheries and ecosystem research with longline
gear within any of the exclusion zones established by the FKWTRP.
Because longline research is currently conducted in conjunction
with commercial fisheries, operational characteristics (e.g.,
branchline and floatline length, hook type and size, bait type, number
of hooks between floats) of the longline gear in Hawai'i, American
Samoa, Guam, the Commonwealth of the Northern Marianas, or EEZs of the
Pacific Insular Areas adhere to the requirements on commercial longline
gear based on NMFS regulations (summarized at https://www.fisheries.noaa.gov/pacific-islands/resources-fishing/regulation-summaries-and-compliance-guides-pacific-islands and specified in 50 CFR
parts 229, 300, 404, 600, and 665). PIFSC will adhere to the
regulations detailed at the link above, and generally follow the
following procedures when setting and retrieving longline gear:
When shallow-setting anywhere and setting longline gear
from the stern: Completely thawed and blue-dyed bait will be used (two
1-pound containers of blue-dye will be kept on the boat for backup).
Fish parts and spent bait with all hooks removed will be kept for
strategic offal discard. Retained swordfish will be cut in half at the
head; used heads and livers will also be used for strategic offal
discard. Setting will only occur at night and begin 1 hour after local
sunset and finish 1 hour before next sunrise, with lighting kept to a
minimum.
When deep-setting north of 23[deg] N and setting longline
gear from the stern: 45 gram (g) or heavier weights will be attached
within 1 m of each hook. A line shooter will be used to set the
mainline. Completely thawed and blue-dyed bait will be used (two 1-
pound containers of blue-dye will be kept on the boat for backup). Fish
parts and spent bait with all hooks removed will be kept for strategic
offal discard. Retained swordfish will be cut in half at the head; used
heads and livers will also be used for strategic offal discard.
When shallow-setting anywhere and setting longline gear
from the side: Mainline will be deployed from the port or starboard
side at least 1 m forward of the stern corner. If a line shooter is
used, it will be mounted at least 1 m forward from the stern corner. A
bird curtain will be used aft of the setting station during the set.
Gear will be deployed so that hooks do not resurface. 45 g or heavier
weights will be attached within 1 m of each hook.
When deep-setting north of 23[deg] N and setting longline
gear from the side: Mainline will be deployed from the port or
starboard side at least 1 m forward of the stern corner. If a line
shooter is used, it will be mounted at least 1 m forward from the stern
corner. A bird curtain will be used aft of the setting station during
the set. Gear will be deployed so that hooks do not resurface. 45 g or
heavier weights will be attached within 1 m of each hook.
Operational characteristics in non-Western Pacific Regional
Fisheries Management Council areas of jurisdiction (i.e., outside of
the areas under NMFS jurisdiction named above) adhere to the
regulations of the
[[Page 21161]]
applicable management agencies. These agencies include the Western and
Central Pacific Fisheries Commission (WCPFC), International Commission
for the Conservation of Atlantic Tunas (ICCAT), and Inter-American
Tropical Tuna Commission (IATTC). These operational characteristics
include specifications in WCPFC 2008, WCPFC 2007, ICCAT 2010, ICCAT
2011, IATTC 2011, and IATTC 2007.
Small Boat and Diver Operations
The following measures are carried out by the PIFSC when working in
and around shallow water coral reef habitats. These measures are
intended to avoid and minimize impacts to marine mammals and other
protected species. Transit from the open ocean to shallow-reef survey
regions (depths of < 35 m) of atolls and islands is anticipated to be
no more than 3 nmi, dependent upon prevailing weather conditions and
regulations. Each team conducts surveys and in-water operations with at
least two divers observing for the proximity of marine mammals, a
coxswain driving the small boat, and a topside spotter working in
tandem. Topside spotters may also work as coxswains, depending on team
assignment and boat layout. Spotters and coxswains will be tasked with
specifically looking out for divers, marine mammals, and environmental
hazards.
Before approaching any shoreline or exposed reef, all observers
will examine the beach, shoreline, reef areas, and any other visible
land areas within the line of sight for marine mammals. Divers,
spotters, and coxswains must undertake consistent due diligence and
take every precaution during operations to avoid interactions with any
marine mammals (e.g., flushing Hawaiian monk seals). Scientists,
divers, and coxswains must follow the Best Management Practices (BMPs)
for boat operations and diving activities. These practices include but
are not limited to the following:
Constant vigilance shall be kept for the presence of
marine mammals;
When piloting vessels, vessel operators shall alter course
to remain at least 100 m from marine mammals;
Reduce vessel speed to 10 kt or less when piloting vessels
within 1 km (as visibility permits) of marine mammals;
Marine mammals may not be encircled or trapped between
multiple vessels or between vessels and the shore;
If approached by a marine mammal (within 100 yards (91 m)
for large whales (i.e., baleen whale or sperm whale) and 50 yards (46
m) for all other marine mammals), put the engine in neutral and allow
the animal to pass;
Unless specifically covered under a separate NMFS research
permit that allows activity in proximity to marine mammals, all in-
water work, not already underway, will be postponed and must not
commence until large whales are beyond 100 yards or other marine
mammals are beyond 50 yards.;
Should marine mammals enter the area while in-water work
is already in progress, the activity may continue only when that
activity has no reasonable expectation to adversely affect the
animal(s);
No feeding, touching, riding, or otherwise intentionally
interacting with any marine mammals is permitted unless undertaken to
rescue a marine mammal or otherwise authorized by another permit;
Mechanical equipment will also be monitored to ensure no
accidental entanglements occur with protected species (e.g., with
passive acoustic monitoring float lines, transect lines, and
oceanographic equipment stabilization lines); and
Team members will immediately respond to an entangled
animal, halting operations and providing an onsite response assessment
(allowing the animal to disentangle itself, assisting with
disentanglement, etc.), unless doing so would put divers, coxswains, or
other staff at risk of injury or death.
Marine Debris Research and Removal Activities
Land vehicle (trucks) operations will occur in areas of marine
debris where vehicle access is possible from highways or rural/dirt
roads adjacent to coastal resources. Prior to initiating any marine
debris removal operations, marine debris personnel (marine ecosystem
specialists) will thoroughly examine the beaches and near shore
environments/waters for Hawaiian monk seals before approaching marine
debris sites and initiating removal activities. Debris will be
retrieved by personnel who are knowledgeable of and act in compliance
with all Federal laws, rules and regulations governing wildlife in the
Papah[amacr]naumoku[amacr]kea Marine National Monument and MHI. This
includes, but is not limited to maintaining a minimum distance of 50
yards (46 m) from all monk seals and a minimum of 100 yards (91 m) from
female seals with pups.
Bottomfishing
Although take of marine mammals incidental to use of bottomfishing
hook-and-line research gear is not considered likely, PIFSC intends to
implement mitigation measures to reduce the risk of potential
interactions and to help improve our understanding of what those risks
might be for different species. These efforts will help inform the
adaptive management process to determine the appropriate type of
mitigation needed for research conducted with bottomfishing gear. PIFSC
will implement the following mitigation measures:
Visual monitoring for marine mammals for at least 30
minutes before gear is set and implementation of the ``move-on'' rule
as described above;
To avoid attracting any marine mammals to a bottomfishing
operation, dead fish and bait will not be discarded from the vessel
while actively fishing. Dead fish and bait may be discarded after gear
is retrieved and immediately before the vessel leaves the sampling
location for a new area;
If a hooked fish is retrieved and it appears to the fisher
that it has been damaged by a monk seal or other marine mammal, then
visual monitoring will be enhanced around the vessel for the next 10
minutes. Fishing may continue during this time. If a shark is sighted,
then visual monitoring would be returned to normal. If a monk seal,
bottlenose dolphin, or other marine mammal is seen in the vicinity of a
bottomfishing operation, then the gear would be retrieved immediately
and the vessel would be moved to another sampling location where marine
mammals are not present. Catch loss would be tallied on the data sheet,
as would a ``move-on'' for a marine mammal; and
If bottomfishing gear is lost while fishing, then visual
monitoring will be enhanced around the vessel for the next 10 minutes.
Fishing may continue during this time. If a shark is sighted, then
visual monitoring would be returned to normal under the assumption that
marine mammals and sharks are unlikely to co-occur. If a monk seal,
bottlenose dolphin, or other marine mammal is seen in the vicinity, it
would be observed until a determination can be made of whether gear is
sighted attached to the animal, gear is suspected to be on the animal
(i.e., it demonstrates uncharacteristic behavior such as thrashing), or
gear is not observed on the animal and it behaves normally. If a
cetacean or monk seal is sighted with the gear attached or suspected to
be attached, then the procedures and actions for incidental takes would
be initiated (see Monitoring and Reporting). Gear loss would be tallied
on the data sheet, as would a ``move-on'' because of a marine mammal.
[[Page 21162]]
Instrument and Trap Deployment
Visual monitoring requirements for instrument and trap deployments
are similar to the general protocols described above for trawl and
longline surveys. Please see that section for full details of the
visual monitoring protocol and the move-on rule mitigation protocol. In
summary, requirements for longline surveys are to: (1) conduct visual
monitoring prior to arrival on station; (2) implement the move-on rule
if marine mammals are observed within the area around the vessel and
may be at risk of interacting with the vessel or gear; (3) deploy gear
as soon as possible upon arrival on station (depending on presence of
marine mammals); and (4) maintain visual monitoring effort throughout
deployment and retrieval of the gear. As was described for trawl and
longline gear, the OOD, CS, or personnel on watch will use best
professional judgment to minimize the risk to marine mammals from
potential gear interactions during deployment and retrieval of gear. If
marine mammals are detected during setting operations and are
considered to be at risk, immediate retrieval or suspension of
operations may be warranted. If operations have been suspended because
of the presence of marine mammals, the vessel will resume setting (when
practicable) only when the animals are believed to have departed the
area. If marine mammals are detected during retrieval operations and
are considered to be at risk, haul-back may be postponed. PIFSC must
retrieve gear and follow disentanglement protocols immediately if
marine mammals are believed to be entangled in an instrument or trap
line or associated gear. These decisions are at the discretion of the
OOD/CS and are dependent on the situation.
In order to minimize the potential risk of entanglement during
instrument and trap deployment, PIFSC is evaluating possible
modifications to total line length and the relative length of floating
line to sinking line used for stationary gear that is deployed from
ships or small boats (e.g., stereo-video data collection). A certain
amount of extra line (or scope) is needed whenever deploying gear/
instruments to the seafloor to prevent currents from moving the gear/
instruments off station. If the line is floating line and there is no
current then the scope will be floating on the surface. Alternatively,
the scope in sinking line may gather below the water surface when
currents are slow or absent. Because current speeds vary, there is a
need for scope every time that gear is deployed.
Line floating on the surface presents the greatest risk for marine
mammal entanglement, especially for humpback whales, because: (1) when
marine mammals (e.g., humpback whales) come to the surface to breathe,
the floating line is more likely to become caught in their mouths or
around their fins; and (2) humpback whales tend to spend most of their
time near the surface, generally in the upper 150 m of the water
column.
Currently, PIFSC uses only floating line to deploy stationary gear
from ships or small boats. Floating line is used in order to maintain
the vertical orientation of the line immediately above the instrument
on the seafloor. The floating line also helps to keep the line off of
the seafloor where it could snag or adversely affect benthic organisms
or habitat features.
This mitigation measure would involve the use of sinking line for
approximately the top one-third of the line. The other approximately
lower two-thirds would still be floating line. This configuration would
allow any excess scope in the line to sink to a depth where it would be
below where most whales and dolphins commonly occur. Specific line
lengths, and ratios of floating line to sinking line, would vary with
actual depth and the total line length. This mitigation measure would
not preclude the risk of whales or dolphins swimming into the submerged
line, but this risk is believed to be lower relative to line floating
on the surface.
Based on our evaluation of the PIFSC's proposed measures, as well
as other measures considered by NMFS, NMFS has determined that the
required mitigation measures provide the means of 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.
Monitoring and Reporting
In order to issue an incidental take authorization for an activity,
section 101(a)(5)(A) of the MMPA states that NMFS must set forth
``requirements pertaining to the monitoring and reporting of such
taking.'' The MMPA implementing regulations at 50 CFR 216.104 (a)(13)
require that requests for incidental take authorizations must include
the suggested means of accomplishing the necessary monitoring and
reporting that will result in increased knowledge of the species and of
the level of taking or impacts on populations of marine mammals that
are expected to be present while conducting activities.
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
specified geographical region (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.
PIFSC shall designate a compliance coordinator who shall 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.
The monitoring requirements are as follows:
Visual Monitoring
Marine mammal watches are a standard part of conducting fisheries
research activities, and are implemented as described previously in the
Mitigation section. 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 PIFSC personnel or other trained crew during the
monitoring period. Observers record the species and estimated number of
animals present and their behaviors.
[[Page 21163]]
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 PIFSC personnel) monitor for
marine mammals at all times while the vessel is being operated. The
primary focus for this type of watch is to avoid striking marine
mammals and 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.
PIFSC 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, shown in table 14.
Training
NMFS considers the required suite of monitoring and operational
procedures to be necessary to avoid adverse interactions with protected
species and still allow PIFSC 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 CSs 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 PIFSC 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 includes a series of improvements
to PIFSC protected species training, awareness, and reporting
procedures. NMFS expects these new procedures will facilitate and
improve the implementation of the mitigation measures described above.
PIFSC will initiate a process for its CSs 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. PIFSC would coordinate not only among its staff and vessel
captains but also with those from other fisheries science centers and
institutions with similar experience.
PIFSC would also develop a formalized marine mammal training
program required for all PIFSC 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. PIFSC will work with the
Pacific Islands commercial fisheries Observer Program to customize a
new marine mammal training program for researchers and ship crew. The
Observer Program currently provides protected species training (and
other types of training) for NMFS-certified observers placed on board
commercial fishing vessels. PIFSC CSs and appropriate members of PIFSC
research crews will be trained using similar monitoring, data
collection, and reporting protocols for marine mammal as is required by
the Observer Program. All PIFSC 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 PIFSC 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 PIFSC research cruises already include
pre-sail review of marine mammal protocols for affected crew but PIFSC
will also review its briefing instructions for consistency and
accuracy.
Following the first year of implementation of the LOA, PIFSC will
convene a workshop with Pacific Islands Regional Office (PIRO)
Protected Resources Division, PIFSC 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. PIFSC 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.
Handling Procedures and Data Collection
PIFSC must develop and implement standardized marine mammal
handling, disentanglement, and data collection procedures. These
standard procedures will be subject to approval by NMFS OPR. Improved
standardization of handling procedures were discussed previously in the
Mitigation section. In addition to improving marine mammal survival
post-release, PIFSC believes adopting these protocols for data
collection will also increase the information on which ``serious
injury'' determinations (NMFS, 2012a; 2012b) are based, improve
scientific knowledge about marine mammals that interact with fisheries
research gear, and increase understanding of the factors that
contribute to these interactions. PIFSC personnel will receive standard
guidance and training on handling marine mammals, including how to
identify different species, bring an individual aboard a vessel, assess
the level of consciousness, remove fishing gear, return an individual
to the water,
[[Page 21164]]
and record activities pertaining to the interaction.
PIFSC will record interaction information on their own standardized
forms. To aid in serious injury determinations and comply with the
current NMFS Serious Injury Guidelines, researchers will also answer a
series of supplemental questions on the details of marine mammal
interactions.
Finally, for any marine mammals that are killed during fisheries
research activities, scientists will collect data and samples pursuant
to appendix D of the PIFSC Draft Environmental Assessment, ``Protected
Species Mitigation and Handling Procedures for PIFSC Fisheries Research
Vessels.''
Reporting
As is normally the case, PIFSC will coordinate with the relevant
stranding coordinators for any unusual marine mammal behavior and any
stranding, beached live/dead, or floating marine mammals that are
encountered during field research activities. The PIFSC will follow a
phased approach with regard to the cessation of its activities and/or
reporting of such events, as described in the regulatory text following
this preamble. In addition, CSs (or vessel operators) will provide
reports to PIFSC leadership and to OPR. As a result, when marine
mammals interact with survey gear, whether killed or released alive, a
report provided by the CS will fully describe any observations of the
animals, the context (vessel and conditions), decisions made and
rationale for decisions made in vessel and gear handling. The
circumstances of these events are critical in enabling PIFSC and OPR to
better evaluate the conditions under which takes are most likely to
occur. We believe in the long term this will allow the avoidance of
these types of events in the future.
The PIFSC will submit annual summary reports to OPR including:
(1) Annual line-kilometers surveyed during which the EK60, EM 300,
and ADCP Ocean Surveyor (or equivalent sources) were predominant (see
Estimated Take Due to Acoustic Harassment for further discussion),
specific to each region;
(2) Summary information regarding use of all longline and trawl
gear, including number of sets, tows, etc., specific to each research
area and gear;
(3) Accounts of surveys where marine mammals were observed during
sampling but no interactions occurred;
(4) 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;
(5) Summary information related to any disturbance of pinnipeds,
including event-specific total counts of animals present, counts of
reactions according to the three-point scale shown in table 14, and
distance of closest approach;
(6) A written description of any mitigation research investigation
efforts and findings (e.g., line modifications);
(7) A written evaluation of the effectiveness of PIFSC 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; and
(8) Details on marine mammal-related training taken by PIFSC and
partner affiliates.
The period of reporting will be annually. The first annual report
must cover the period from the date of issuance of the LOA through the
end of that calendar year and the entire first full calendar year of
the authorization. Subsequent reports would cover only 1 full calendar
year. Each annual report must be submitted not less than 90 days
following the end of a given year. PIFSC shall provide a final report
within 30 days following resolution of comments on the draft report.
Submission of this information serves an adaptive management framework
function by allowing NMFS to make appropriate modifications to
mitigation and/or monitoring strategies, as necessary, during the 5-
year period of validity for these regulations.
NMFS has established a formal incidental take reporting system, the
Protected Species Incidental Take (PSIT) database, requiring that
incidental takes of protected species be reported within 48 hours of
the occurrence. The PSIT generates automated messages to NMFS
leadership and other relevant staff, alerting them to the event and to
the fact that updated information describing the circumstances of the
event has been inputted to the database. The PSIT and CS reports
represent not only valuable real-time reporting and information
dissemination tools but also serve as an archive of information that
may be mined in the future to study why takes occur by species, gear,
region, etc. The PIFSC 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 PIFSC fisheries research activities
cause the take of a marine mammal in a prohibited manner, PIFSC
personnel engaged in the research activity shall immediately cease such
activity until such time as an appropriate decision regarding activity
continuation can be made by the PIFSC Director (or designee). The
incident must be reported immediately to OPR and the NMFS Pacific
Islands Regional Office. OPR will review the circumstances of the
prohibited take and work with PIFSC to determine what measures are
necessary to minimize the likelihood of further prohibited take and
ensure MMPA compliance. The immediate decision made by PIFSC 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 PIFSC 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), PIFSC shall immediately report the incident to OPR and
PIRO. The report must include the information identified above.
Activities may continue while OPR reviews the circumstances of the
incident. OPR will work with PIFSC to determine whether additional
mitigation measures or modifications to the activities are appropriate.
In the event that PIFSC discovers an injured or dead marine mammal
and determines that the injury or death is not associated with or
related to PIFSC fisheries research activities (e.g., previously
wounded animal, carcass with moderate to advanced decomposition,
scavenger damage), PIFSC shall report the incident to OPR and the
Pacific Islands Regional Office, NMFS, within 24 hours of the
discovery. PIFSC shall provide photographs or video footage or other
[[Page 21165]]
documentation of the stranded animal sighting to OPR.
In the event of a ship strike of a marine mammal by any PIFSC or
partner vessel involved in the activities covered by the authorization,
PIFSC or partner shall 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.
PIFSC 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. PIFSC
will require that the CS complete data forms and address supplemental
questions, both of which have been developed to aid in SI
determinations. PIFSC 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 PIFSC
will perform all necessary reporting to ensure that any incidental M/SI
is incorporated as appropriate into relevant SARs.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' by mortality, serious injury, and Level A or Level B
harassment, we consider other factors, such as the likely nature of any
behavioral responses (e.g., intensity, duration), the context of any
such responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338, September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, and
specific consideration of take by M/SI previously authorized for other
NMFS research activities).
Serious Injury and Mortality
We note here that the takes from potential gear interactions
enumerated below could result in non-serious injury, but their worse
potential outcome (mortality) is analyzed for the purposes of the
negligible impact determination.
In addition, we discuss here the connection, and differences,
between the legal mechanisms for authorizing incidental take under
section 101(a)(5) for activities such as those planned by PIFSC, 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. In Conservation Council for Hawaii v.
National Marine Fisheries Service, 97 F. Supp. 3d 1210 (D. Haw. 2015),
which concerned a challenge to NMFS' regulations and LOAs to the Navy
for activities assessed in the 2013-2018 U.S. Navy Hawaii-Southern
California Training and Testing (HSTT) MMPA rulemaking, the Court ruled
that NMFS' failure to consider PBR when evaluating lethal takes in the
negligible impact analysis under section 101(a)(5)(A) violated the
requirement to use the best available science.
PBR is defined in section 3 of 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'' (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 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.'' An overarching goal of the MMPA is to ensure
that each species or stock of marine mammal is maintained at or
returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time, and is the product of factors relating to
the minimum population estimate of the stock (Nmin), the
productivity rate of the stock at a small population size, and a
recovery factor. Determination of appropriate values for these three
elements incorporates significant precaution, such that application of
the parameter to the management of marine mammal stocks may be
reasonably certain to achieve the goals of the MMPA. For example,
calculation of the minimum population estimate (Nmin)
incorporates the level of precision and degree of 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), typically by using the 20th percentile of a log-
normal distribution of the population estimate. 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
[[Page 21166]]
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 to authorize incidental take
through multi-year regulations, nor does its companion provision at
section 101(a)(5)(D) for authorizing non-lethal incidental take under
the same negligible-impact standard. NMFS' MMPA implementing
regulations state that take has a negligible impact when it does not
``adversely affect the species or stock through effects on annual rates
of recruitment or survival''--likewise without reference to PBR. When
Congress amended the MMPA in 1994 to add section 118 for commercial
fishing, it did not alter the standards for authorizing non-commercial
fishing incidental take under section 101(a)(5), implicitly
acknowledging that the negligible impact standard under section
101(a)(5) is separate from the PBR metric under section 118. In fact,
in 1994 Congress also amended section 101(a)(5)(E) (a separate
provision governing commercial fishing incidental take for species
listed under the ESA) 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 the
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 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 a different 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 section 101(a)(5)(A). As noted by NMFS and the U.S.
Fish and Wildlife Service in our implementing 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 from all sources 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
[[Page 21167]]
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, as we
did in the U.S. Navy's Atlantic Fleet Training and Testing (AFTT) final
rule (83 FR 57076, November 14, 2018), and 2-year rule extension (84 FR
70712, December 23, 2019), as well as the U.S. Navy's HSTT final rule
(83 FR 66846, December 27, 2018) and 2-year rule extension (85 FR
41780, July 10, 2020). Assuming that any additional incidental take by
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
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 residual PBR or 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.
In Conservation Council for Hawaii v. National Marine Fisheries
Service, which involved the challenge to NMFS' issuance of LOAs to the
Navy in 2013 for activities in the HSTT Study Area, the Court reached a
different conclusion, stating, ``Because any mortality level that
exceeds PBR will not allow the stock to reach or maintain its OSP, such
a mortality level could not be said to have only a `negligible impact'
on the stock.'' As described above, NMFS respectfully maintains that
this statement fundamentally misunderstands the two terms and
incorrectly indicates that these concepts (PBR and ``negligible
impact'') are directly connected, when in fact nowhere in the MMPA is
it indicated that these two terms are equivalent. Moreover, this
statement is not precedential, and other caselaw recognizes that PBR
and ``negligible impact'' are analytically distinct. E.g., Melone v.
Coit, 100 F.4th 21, 31 (1st Cir. 2024).
Specifically, 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 describes 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). Given that, as applied by
NMFS, PBR 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.
As discussed above, while PBR is useful in informing the evaluation
of the effects of M/SI in section 101(a)(5)(A) determinations, it is
just one consideration to be assessed in combination with other factors
and is not determinative. For example, as explained above, the accuracy
and certainty of the data used to calculate PBR for the species or
stock must be considered. And we reiterate the considerations discussed
above for why it is not appropriate to consider PBR an absolute cap in
the application of this guidance. Accordingly, we use PBR as a trigger
for concern while also considering other relevant factors to provide a
reasonable and appropriate means of evaluating the effects of potential
mortality on rates of recruitment and survival, while acknowledging
that it is possible to exceed PBR (or exceed 10 percent of PBR in the
case where other human-caused mortality is exceeding PBR but the
specified activity being evaluated is an incremental contributor, as
described in the last paragraph) by some small amount and still make a
negligible impact determination under section 101(a)(5)(A).
We note that on June 17, 2020, NMFS finalized new Criteria for
Determining Negligible Impact under MMPA section 101(a)(5)(E). The
guidance explicitly notes the differences in the negligible impact
determinations required under section 101(a)(5)(E), as compared to
sections 101(a)(5)(A) and 101(a)(5)(D), and specifies that the
procedure in that document is limited to how the agency
[[Page 21168]]
conducts negligible impact analyses for commercial fisheries under
section 101(a)(5)(E). In the proposed rule (86 FR 15298, March 22,
2021) (and above), NMFS has described its method for considering PBR to
evaluate the effects of potential mortality in the negligible impact
analysis. NMFS has reviewed the 2020 guidance and determined that our
consideration of PBR in the evaluation of mortality as described above
and in the proposed rule remains appropriate for use in the negligible
impact analysis for the PIFSC's fisheries research activities under
section 101(a)(5)(A).
Our evaluation of the M/SI for each of the species and stocks for
which mortality could occur follows. 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 PIFSC 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 (see Harassment section
below).
We have authorized take by M/SI over the 5-year period of validity
for these regulations as indicated in table 15 below. For the purposes
of the negligible impact analysis, we assume that all takes from gear
interaction could potentially be in the form of M/SI.
We previously authorized the take by M/SI of marine mammals
incidental to fisheries research operations conducted by the SWFSC (see
80 FR 58981 and 80 FR 68512), the NWFSC (see 83 FR 36370 and 83 FR
47135), and the Alaska Fisheries Science Center (AFSC) (see 84 FR 46788
and 84 FR 54893). However, this take would not occur to the same stocks
for which we have authorized take incidental to PIFSC fisheries
research operations; therefore, we do not consider M/SI takes from
other science center activities. The final rule for the U.S. Navy's
HSTT also authorized take of the Hawai[revaps]i stock of sperm whales
by M/SI. Therefore, that authorized take by the Navy has been
considered in this assessment. 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 (but unrealized) or unknown mortality. Below, we
consider the total taking by M/SI authorized for PIFSC to produce a
maximum annual M/SI take level (including take of unidentified marine
mammals that could accrue to any relevant stock) and compare that value
to the stock's PBR value, considering ongoing sources of anthropogenic
mortality (as described in footnote 4 of table 15 and in the following
discussion). PBR and annual M/SI values considered in table 15 reflect
the most recent information available (i.e., draft 2023 SARs). In the
Harassment section below, we consider the interaction of those
mortalities with incidental taking of that species or stock by
harassment pursuant to the specified activity.
Table 15--Summary Information Related to PIFSC Authorized Annual Take by Mortality or Serious Injury Authorization, 2025-2030
--------------------------------------------------------------------------------------------------------------------------------------------------------
U.S. Navy
Authorized Stock HSTT
Species Stock Stock PIFSC M/SI Stock annual authorized r-PBR (PBR-stock Authorized M/SI
abundance take (annual) PBR M/SI take by M/ annual M/SI) \3\ take/r-PBR (%)
\1\ \2\ SI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale......... Hawai[revaps]i...... 1,132 0.2 5.6 0 0 5.6 3.6
Cuvier's Beaked whale............. Hawai[revaps]i 4,431 0.2 32 0 0 32 0.6
Pelagic.
Bottlenose dolphin................ Hawai[revaps]i 24,669 0.6 158 0 0 158 0.4
Pelagic.
Bottlenose dolphin \4\............ All stocks except N/A 0.4 N/A N/A 0 N/A N/A
Hawai[revaps]i
Pelagic.
False killer whale \5\............ Hawai[revaps]i 5,528 0.2 33 47 0 -14 N/A
Pelagic or
unspecified.
Humpback whale.................... Hawai[revaps]i...... 11,278 0.4 127 27.1 0 99.9 0.4
Kogia spp.\8\..................... Hawai[revaps]i...... 42,083 0.2 257 0 0 257 0.1
Pantropical spotted dolphin \6\... all stocks.......... 67,313 0.6 538 0 0 538 0.1
Pygmy killer whale................ Hawai[revaps]i...... 10,328 0.2 59 0 0 59 0.3
Risso's dolphin................... Hawai[revaps]i...... 6,979 0.2 53 0 0 53 0.4
Rough-toothed dolphin............. Hawai[revaps]i...... 83,915 0.6 511 3.2 0 507.8 0.1
Rough-toothed dolphin............. All stocks except N/A 0.4 N/A N/A 0 N/A N/A
Hawai[revaps]i.
Short-finned pilot whale.......... Hawai[revaps]i...... 19,242 0.2 159 0.2 0 158.8 0.1
Sperm whale....................... Hawai[revaps]i...... 5,707 0.2 18 0 0.14 17.9 1.1
Spinner dolphin \7\............... All stocks.......... 665 0.4 6.2 1.0 0 5.2 7.7
Striped dolphin................... All stocks.......... 64,343 0.4 511 0 0 511 0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Please see table 5 and preceding text for details on estimated take by M/SI.
\1\ As explained earlier in this document, gear interaction could result in mortality, serious injury, or Level A harassment. Because we do not have
sufficient information to enable us to parse out these outcomes, we present such take as a pool. For purposes of this negligible impact analysis we
assume a scenario in which all such takes incidental to research activities result in mortality.
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock as a result of NMFS's
fisheries research activities and is the number carried forward for evaluation in the negligible impact analysis. The take authorization is formulated
as a 5-year total; the annual average is used only for purposes of negligible impact analysis. We recognize that portions of an animal may not be
taken in a given year.
\3\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/
SI, which is presented in the SARs) (see table 2). For some stocks, a minimum population abundance value (and therefore PBR) is unavailable. In these
cases, the proportion of estimated population abundance represented by the Level B harassment total and/or the proportion of residual PBR represented
by the estimated maximum annual M/SI cannot be calculated.
\4\ PBR known for Kauai and Ni[revaps]ihau and Hawaiian Islands stocks but a total PBR for multiple stocks cannot be determined.
\5\ PIFSC fisheries and ecosystem research would not occur within the ranges of other specified false killer whale stocks. ``Unspecified stock'' only
occurs on the high seas.
\6\ Stock abundance and PBR presented only for Hawai[revaps]i Pelagic stock, which is the only stock with estimates of population and PBR.
\7\ Stock abundance and PBR presented only for Hawai[revaps]i Island stock, which is the only stock with estimates of population and PBR.
\8\ Stock data presented for pygmy sperm whale only; no data are available for dwarf sperm whale.
The majority of stocks that may potentially be taken by M/SI (13 of
14 stocks for which PBR values exist) fall below the insignificance
threshold (i.e., 10 percent of residual PBR). An additional two stocks
do not have current PBR values and therefore are evaluated using other
factors which are discussed later.
[[Page 21169]]
In this section, we first consider stocks for which the authorized
M/SI falls below the insignificance threshold. Next, we consider those
stocks without PBR values or known annual M/SI (bottlenose dolphin (all
stocks except Hawai[revaps]i Pelagic) and rough-toothed dolphin (all
stocks except Hawai[revaps]i)), as well as Hawai[revaps]i Pelagic false
killer whales, which is the only stock for which annual M/SI exceeds
the PBR value.
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 15, the following species or stocks have
authorized M/SI from PIFSC fisheries research below their
insignificance threshold: Blainville's beaked whale (Hawai[revaps]i
stock), Cuvier's beaked whale (Hawai[revaps]i pelagic stock),
bottlenose dolphin (Hawai[revaps]i pelagic stock), humpback whale
(Hawai[revaps]i stock), Kogia sp. (Hawaii stocks) pantropical spotted
dolphin (all stocks), pygmy killer whale (Hawai[revaps]i stock),
Risso's dolphin (Hawai[revaps]i stock), rough-toothed dolphin
(Hawai[revaps]i stock), short-finned pilot whale (Hawai[revaps]i
stock), sperm whale (Hawai[revaps]i stock), spinner dolphin (all
stocks), and striped dolphin (all stocks).
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 Undetermined PBR or M/SI
The Kauai/Ni[revaps]ihau, Oahu, Maui Nui (4-Islands), and
Hawai[revaps]i Island stocks of bottlenose dolphins (Hawai[revaps]i
Islands stock complex) were most recently assessed in the draft 2023
SARs. PBR was calculated for all four of these stocks, with values
ranging from 0.6 for the Maui Nui stock to 1.0 for the Oahu and
Hawai[revaps]i Island stocks. However, annual M/SI estimates are
considered unknown for all four stocks (but a minimum of 0.2 for the
Hawai[revaps]i Island stock), as there is no systematic monitoring of
takes in nearshore fisheries that may take this species. Assuming zero
annual stock M/SI (0.2 for the Hawai[revaps]i Island stock), as no
other information is available, the residual PBR for each stock is
equal to the PBR value for each stock, i.e., 0.9 animals per year for
the Kauai/Ni[revaps]ihau stock, 1.0 for the Oahu stock, 0.6 for the
Maui Nui stock, and 0.8 for the Hawai[revaps]i Island stock (PBR value
of 1.0 minus the minimum annual M/SI of 0.2). PIFSC cannot predict
which specific stock of bottlenose dolphins may be taken by M/SI.
Assuming the authorized annual average take by M/SI incidental to PIFSC
fisheries research activities (0.4 per year) occurs within each stock,
the take is above the insignificance threshold (i.e., 10 percent of
residual PBR) for all stocks. We consider qualitative information such
as population dynamics and context to determine if the authorized
amount of bottlenose dolphin takes from these stocks would have a
negligible impact on annual rates of survival and recruitment. Marine
mammals are K-selected species, meaning they have few offspring, long
gestation and parental care periods, and reach sexual maturity later in
life. Therefore, between years, reproduction rates vary based on age
and sex class ratios. As such, population dynamics is a driver when
looking at reproduction rates. We focus on reproduction here because we
conservatively consider inter-stock reproduction is the primary means
of recruitment for these stocks. Recent photo-identification and
genetic studies off Oahu, Maui, Lanai, Kauai, Niihau, and Hawaii
suggest limited movement of bottlenose dolphins between islands and
offshore waters (Baird et al., 2009; Martien et al., 2012; Van Cise et
al., 2021). Several studies have purported that male bottlenose
dolphins are more likely to engage in depredation or related behaviors
with trawls and recreational fishing (Corkeron et al., 1990; Powell &
Wells, 2011) or become entangled in gear (Reynolds et al., 2000; Adimey
et al., 2014). Male bias has also been reported for strandings with
evidence of fishery interaction (Stolen et al., 2007; Fruet et al.,
2012; Adimey et al., 2014) and for in situ observations of fishery
interaction (Corkeron et al., 1990; Finn et al., 2008; Powell & Wells,
2011). Therefore, we believe males (which are less likely to influence
recruitment rate) are more likely at risk than females. Given
reproduction is the primary means of recruitment and females play a
significantly larger role in their offspring's reproductive success
(also known as Bateman's Principle), the mortality of females rather
than males is, in general, more likely to influence recruitment rate.
PIFSC has requested, and NMFS is authorizing, two takes of bottlenose
dolphins by M/SI from any stock over the course of 5 years. The average
5-year estimates of annual mortality and serious injury for bottlenose
dolphins in the Hawaiian Islands EEZ is low, the stocks are not facing
heavy anthropogenic pressure, and there are no identified continuous
indirect stressors threatening the stock. While we cannot determine
from which stock(s) the potential take by M/SI may occur, we do not
expect that take by M/SI of up to two bottlenose dolphins by M/SI over
5 years from any of the identified or undefined stocks in the PIFSC
research areas would adversely affect annual rates of recruitment or
survival for these populations.
PIFSC has requested take of rough-toothed dolphins by M/SI from the
Hawai[revaps]i stock (0.6 per year) and from all stocks other than the
Hawai[revaps]i stock (0.4 per year). The authorized take by M/SI for
the Hawai[revaps]i stock of rough-toothed dolphins falls below the
insignificance threshold. For rough-toothed dolphins from all stocks
except the Hawai[revaps]i stock, PIFSC has requested an average of 0.2
takes by M/SI per year from longline fisheries research and 0.2 takes
by M/SI per year from instrument deployments. The only other defined
stock of rough-toothed dolphins in the PIFSC is the American Samoa
stock. PIFSC will not be conducting longline fisheries research in the
ASARA, therefore no take of rough-toothed dolphins from the American
Samoa stock by M/SI incidental to longline fisheries research is
expected or authorized. However, rough-toothed dolphins from the
American Samoa stock may be taken by M/SI from instrument deployments.
No abundance estimates are currently available for rough-toothed
dolphins in U.S. EEZ waters of American Samoa. However, density
estimates for rough-toothed dolphins in other tropical Pacific regions
can provide a range of likely abundance estimates in this unsurveyed
region. Using density estimates from other regions, NMFS has calculated
a minimum abundance estimate (426-2,731 animals) and resulting PBR (3.4
to 22 animals per year) for the American Samoa stock of rough-toothed
dolphins (Caretta et al., 2011). Information on fishery-related
mortality of cetaceans in American Samoa is limited, but the gear types
used in American Samoan fisheries are responsible for marine mammal
mortality and serious injury in other fisheries throughout U.S. waters.
The most recent information on average incidental M/SI of rough-toothed
dolphins in American Samoa is from
[[Page 21170]]
longline fisheries observed from 2006 to 2008 (Caretta et al., 2011).
During that time period, the average annual take of rough-toothed
dolphins by M/SI in American Samoa was 3.6 per year. That average
exceeds the lowest estimated PBR for the American Samoa stock of rough-
toothed dolphins, but the potential average annual take of rough-
toothed dolphins by M/SI incidental to instrument deployment (0.2 per
year) is well below the insignificance threshold using the highest
estimated PBR. In fact, if the 2006-2008 average fishery-related take
by M/SI is still accurate, the authorized average annual take by M/SI
incidental to instrument deployment falls below the insignificance
threshold if the actual PBR is as low as six animals per year. Given
that there is an absence of any new information on annual fishery-
related M/SI or PBR, NMFS does not expect that 0.2 takes per year of
the American Samoa stock of rough-toothed dolphins by M/SI would be
problematic for the stock. If all 0.4 PIFSC authorized takes by M/SI
per year (0.2 from longline fisheries research and 0.2 from instrument
deployment) were to occur to an undescribed stock of rough-toothed
dolphins, due to their extensive range throughout tropical and warm-
temperate waters, NMFS also does not expect that such a small number of
takes by M/SI would be problematic for populations of rough-toothed
dolphins in the Pacific Ocean. Therefore, takes of rough-toothed
dolphins under this LOA are not expected or likely to adversely affect
the species or stock through effects on annual rates of recruitment or
survival.
False Killer Whales
For this stock, PBR is currently set at 15 for U.S. waters and 33
for the broader Hawaii pelagic false killer whale management area,
including areas of the high seas adjacent to the U.S. EEZ. The total
annual M/SI is estimated at 47 for the broader Hawaii pelagic false
killer whale management area, including annual averages of 17 within
the U.S. EEZ and 30 outside the U.S. EEZ. NMFS authorizes one take by
M/SI over the 5-year duration of the rule (which is 0.2 annually for
the purposes of comparing to PBR and considering other effects on
annual rates of recruitment and survival), which means that PBR is
exceeded by 14.2.
In the commercial fisheries setting for ESA-listed marine mammals
(which is similar to the non-fisheries incidental take setting, in that
a negligible impact determination is required that is based on the
assessment of take caused by the activity being analyzed) NMFS may find
the impact of the authorized take from a specified activity to be
negligible even if total human-caused mortality exceeds PBR, if the
authorized mortality is less than 10 percent of PBR and management
measures are being taken to address serious injuries and mortalities
from the other activities causing mortality (i.e., other than the
specified activities covered by the incidental take authorization under
consideration). When those considerations are applied in the section
101(a)(5)(A) context here, the authorized lethal take (0.2 annually) of
false killer whales from the Hawaii pelagic stock is significantly less
than 10 percent of PBR (in fact less than 1 percent of 33) and there
are management measures in place to address M/SI from activities other
than those the PIFSC is conducting (as discussed below).
Based on identical simulations as those conducted to identify
Recovery Factors for PBR in Wade et al. (1998), but where values less
than 0.1 were investigated (P. Wade, pers. comm.), we predict that
where the mortality from a specified activity does not exceed Nmin *
\1/2\ Rmax * 0.013, the contemplated mortality for the specific
activity will not delay the time to recovery by more than 1 percent.
For this stock of false killer whales, Nmin * \1/2\ Rmax * 0.013 = 1.08
and the annual mortality proposed for authorization is 0.2 (i.e., less
than 1.08), which means that the mortality authorized in this rule for
HSTT activities would not delay the time to recovery by more than 1
percent.
As discussed earlier, we also take into consideration management
measures in place to address M/SI caused by other activities. The
Hawaii deep-set and shallow-set longline fisheries are the cause of M/
SI take from fisheries interactions for false killer whales in Hawaii.
There are no other known sources of anthropogenic mortality for this
stock. NMFS established the False Killer Whale Take Reduction Team in
2010 and prepared an associated Take Reduction Plan to reduce the risk
of M/SI via fisheries interactions. The TRP became effective December
31, 2012, with gear requirements effective February 27, 2013, including
gear requirements, time-area closures, and measures to improve captain
and crew response to hooked and entangled false killer whales.
In this case, 0.2 M/SI annually means the potential for one
mortality in one of the 5 years and zero mortalities in 4 of the 5
years. Therefore, the PIFSC would not be contributing to the total
human-caused mortality at all in four of the 5 years covered by this
rule. That means that even if a false killer whale from the Hawaii
pelagic stock were to be taken by PIFSC research activities, in 4 of
the 5 years there could be no effect on annual rates of recruitment or
survival from PIFSC-caused M/SI. Additionally, the loss of a male would
have far less, if any, of an effect on population rates and absent any
information suggesting that one sex is more likely to be taken than
another, we can reasonably assume that there is a 50 percent chance
that the single take authorized by the LOA issued under this rule would
be a male, thereby further decreasing the likelihood of impacts on the
population rate. In situations like this where potential M/SI is
fractional, consideration must be given to the lessened impacts
anticipated due to the absence of M/SI in 4 of the years and due to the
fact that a single take could be of a male.
Lastly, we reiterate that PBR is a conservative metric and also not
sufficiently precise to serve as an absolute predictor of population
effects upon which mortality caps would appropriately be based. This is
especially important given the minor difference between zero and one
across the 5-year period covered by this rule, which is the smallest
distinction possible when considering mortality. Wade et al. (1998),
authors of the paper from which the current PBR equation is derived,
note that ``Estimating incidental mortality in one year to be greater
than the PBR calculated from a single abundance survey does not prove
the mortality will lead to depletion; it identifies a population worthy
of careful future monitoring and possibly indicates that mortality-
mitigation efforts should be initiated.''
The information included here illustrates that the potential (and
authorized) mortality is well below 10 percent (0.6 percent) of PBR,
and management actions are in place to minimize fisheries interactions.
More specifically, although the total human-mortality exceeds PBR, the
authorized mortality for the PIFSC's specified activities would
incrementally contribute less than 1 percent of that and, further,
given the fact that it would occur in only 1 of 5 years and could be
comprised of a male (far less impactful to the population), the
potential impacts on population rates are even less. Based on all of
the considerations described above, including consideration of the fact
that the authorized mortality of 0.2 would not delay the time to
recovery by more than 1 percent, we do not expect the potential lethal
take from PIFSC activities, alone, to adversely affect the Hawaii
pelagic stock of false killer whales through effects on annual rates of
recruitment or survival. Nonetheless,
[[Page 21171]]
the fact that total human-caused mortality exceeds PBR necessitates
close attention to the remainder of the impacts (i.e., harassment) on
the Hawaii pelagic stock of false killer whales from the PIFSC's
activities to ensure that the total authorized takes would have a
negligible impact on the species and stock. Therefore, this information
will be considered in combination with our assessment of the impacts of
authorized harassment takes later.
Harassment
As described in greater depth previously (see Acoustic Effects), we
do not believe that PIFSC use of active acoustic sources has the likely
potential to cause any effect exceeding Level B harassment of marine
mammals. We have produced what we believe to be precautionary estimates
of potential incidents of Level B harassment. There is a general lack
of information related to the specific way that these acoustic signals,
which are generally highly directional and transient, interact with the
physical environment and to a meaningful understanding of marine mammal
perception of these signals and occurrence in the areas where PIFSC
operates. The procedure for producing these estimates, described in
detail in the Estimated Take Due to Acoustic Harassment section,
represents NMFS's best effort towards balancing the need to quantify
the potential for occurrence of Level B harassment with this general
lack of information. The sources considered here have moderate to high
output frequencies, generally short ping durations, and are typically
focused (highly directional with narrower beamwidths) to serve their
intended purpose of mapping specific objects, depths, or environmental
features. In addition, some of these sources can be operated in
different output modes (e.g., energy can be distributed among multiple
output beams) that may lessen the likelihood of perception by and
potential impacts on marine mammals in comparison with the quantitative
estimates that guide our take authorization. We also produced estimates
of incidents of potential Level B harassment due to disturbance of
hauled out Hawaiian monk seals that may result from the physical
presence of researchers; these estimates are combined with the
estimates of Level B harassment that may result from use of active
acoustic devices. The estimated take by Level B harassment in each
research area is calculated using the total planned research effort
over the course of 5 years. In order to assess the authorized take on
an annual basis, the total estimated take has been divided by five.
Table 16--Total Authorized Take by Level B Harassment in the HARA
----------------------------------------------------------------------------------------------------------------
HARA Level B Annual
Species Stock Stock HARA Level B average annual percent
abundance 5-year take take \a\ of stock
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale.......... Hawai[revaps]i 1,132 208 42 3.7
Pelagic.
Bottlenose dolphin................. Hawai[revaps]i 24,669 189 38 0.2
Pelagic.
Kauai and 112 33.8
Ni[revaps]ihau.
Oahu................. 112 33.8
Maui Nui Region...... 64 59.1
Hawai[revaps]i Island 136 27.8
Cuvier's beaked whale.............. Hawai[revaps]i....... 4,431 73 15 0.3
Dwarf sperm whale.................. Hawai[revaps]i....... Unknown 1,730 346 N/A
False killer whale................. Hawai[revaps]i 138 218 44 31.6
Insular.
Northwestern Hawaiian 477 339 68 14.2
Islands.
Hawai[revaps]i 5,528 145 29 0.5
pelagic.
Fraser's dolphin................... Hawai[revaps]i....... 40,960 442 88 0.2
Hawaiian monk seal................. Hawai[revaps]i....... 1,564 \b\ 1,079 \c\ 216 13.8
Killer whale....................... Hawai[revaps]i....... 161 6 1 0.6
Longman's beaked whale............. Hawai[revaps]i....... 2,550 753 151 5.9
Melon-headed whale................. Hawaiian Islands..... 40,647 74 15 0.0
Kohala............... 447 30 6 1.3
Pantropical spotted dolphin........ Hawai[revaps]i 67,313 490 98 0.1
pelagic.
Oahu................. Unknown N/A
Maui Nui Region...... Unknown N/A
Hawai[revaps]i Island Unknown N/A
Pygmy killer whale................. Hawai[revaps]i....... 10,328 91 18 0.2
Pygmy sperm whale.................. Hawai[revaps]i....... 42,083 705 141 0.3
Risso's dolphin.................... Hawai[revaps]i....... 6,979 1,148 230 3.3
Rough-toothed dolphin.............. Hawai[revaps]i....... 83,915 623 125 0.1
Short-finned pilot whale........... Hawai[revaps]i....... 19,242 1,931 386 2.0
Sperm whale........................ Hawai[revaps]i....... 5,707 451 90 1.6
Spinner dolphin.................... Hawai[revaps]i Unknown 210 42 N/A
pelagic.
Kauai and 601 7.0
Ni[revaps]ihau.
Oahu/4-Island Region. 355 11.8
Hawai[revaps]i Island 665 6.3
Kure and Midway Atoll 260 16.2
Pearl and Hermes Reef Unknown N/A
Striped dolphin.................... Hawai[revaps]i 64,343 525 105 0.2
Pelagic.
Unidentified beaked whale.......... N/A.................. N/A 283 57 N/A
Unidentified Mesoplodon............ N/A.................. N/A 458 92 N/A
----------------------------------------------------------------------------------------------------------------
\a\ Annual take by Level B harassment is calculated by dividing the 5-year total estimated take by five, rounded
to nearest whole number.
\b\ 79 takes incidental to use of acoustic sources, 1,000 takes incidental to disturbance from human presence.
\c\ 16 takes incidental to use of acoustic sources, 200 takes incidental to disturbance from human presence
(maximum potential annual take from physical disturbance).
With the exception of the American Samoa stocks of spinner
dolphins, rough-toothed dolphins, and false killer whales, marine
mammals in the MARA, ASARA, and WCPRA are not assigned to stocks, and
no current abundance estimates are available for these stocks or
populations. Therefore, rather than presenting the authorized takes by
Level B harassment as proportions of relevant stocks, the authorized
take in these
[[Page 21172]]
three research areas is grouped in table 17 by species.
Table 17--Total Authorized Take by Level B Harassment in the MARA, ASARA, and WCPRA
--------------------------------------------------------------------------------------------------------------------------------------------------------
All areas 5- All areas
Species MARA 5-year MARA annual ASARA 5- ASARA WCPRA 5- WCPRA year total annual take
take take year take annual take year take annual take take \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale....................... 123 25 0 0 91 18 214 43
Bottlenose dolphin.............................. 6 1 82 16 85 17 173 35
Cuvier's beaked whale........................... 43 9 31 6 32 6 106 21
Deraniyagala's beaked whale..................... 0 0 0 0 32 6 32 6
Dwarf sperm whale............................... 1,020 204 749 150 754 151 2,523 505
False killer whale.............................. 159 32 \b\ 10 \b\ 2 107 21 276 55
Fraser's dolphin................................ 283 57 0 0 283 57 451 90
Hawaiian monk seal.............................. 0 0 0 0 0 0 0 0
Killer whale.................................... 4 1 4 1 4 1 12 3
Longman's beaked whale.......................... 0 0 0 0 328 66 328 66
Melon-headed whale.............................. 73 15 0 0 73 15 146 29
Pantropical spotted dolphin..................... 271 54 214 43 221 44 706 141
Pygmy killer whale.............................. 7 1 0 0 41 8 48 10
Pygmy sperm whale............................... 416 83 0 0 307 61 723 145
Risso's dolphin................................. 30 6 0 0 500 100 530 106
Rough-toothed dolphin........................... 38 8 \b\ 272 \b\ 54 281 56 591 118
Short-finned pilot whale........................ 227 45 836 167 841 168 1,904 381
Sperm whale..................................... 175 35 195 39 197 39 567 113
Spinner dolphin................................. 120 24 \b\ 44 \b\ 9 105 21 269 54
Striped dolphin................................. 74 15 0 0 237 47 311 62
Unidentified beaked whale....................... 167 33 123 25 123 25 413 83
Unidentified Mesoplodon......................... 0 0 0 0 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Annual take by Level B harassment is calculated by dividing the 5-year total estimated take by five, rounded to nearest whole number.
\b\ American Samoa stock; stock abundance unknown.
The acoustic sources planned to be used by PIFSC 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 PIFSC 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 PIFSC
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
PIFSC 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 hauled out Hawaiian monk seals by
researchers (expected in the HARA) are expected to be infrequent and
cause only a temporary disturbance on the order of minutes. Monitoring
results from other activities involving the disturbance of pinnipeds
and relevant studies of pinniped populations that experience more
regular vessel disturbance indicate that individually significant or
population level impacts are unlikely to occur. PIFSC's nearshore
surveys that may result in disturbance to Hawaiian monk seals are
conducted infrequently, with each individual island visited at most
once per year. While there is some slight possibility of an individual
Hawaiian monk seal moving between islands and being exposed to visual
disturbance from multiple PIFSC surveys over the course of the year, it
is unlikely that an individual seal would be harassed more than once
per year. 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 PIFSC 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.
For these reasons, we do not consider the authorized level of take
by acoustic or visual disturbance to represent a significant additional
population stressor when considered in context with the authorized
level of take by M/SI for any species, including those for which no
abundance estimate is available.
Conclusions
In summary, as described in the Serious Injury and Mortality
section, the authorized takes by serious injury or mortality from PIFSC
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 SI/M 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 required monitoring and
mitigation measures, we find that the total marine mammal take from the
planned
[[Page 21173]]
activities will have a negligible impact on the affected marine mammal
species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
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 maximum number of individuals
taken in any year 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 maximum annual 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 tables 15 through 17 for information relating to this
small numbers analysis. The total amount of taking authorized is less
than 5 percent for a majority of stocks, and the total amount of taking
authorized is less than one-third of the stock abundance for all
defined stocks, with the exception of three of the five stocks in the
bottlenose dolphin stock complex. However, these calculated values
assume that all estimated take by Level B harassment would occur to
each of the stocks individually, as estimated take by Level B
harassment cannot be attributed to specific stocks. The population
abundance of the Hawaii Pelagic stock is dramatically greater than is
the estimated abundance of the four insular stocks (Kauai and Niihau,
Oahu, Maui Nui, and Hawaii Island), comprising 98 percent of the
combined abundance of all bottlenose dolphin stocks. Therefore, it is
extremely unlikely that the full annual average Level B harassment
value of 38 would accrue to any of the four insular stocks in any given
year, and on this basis we find that the expected taking of any of
these stocks would be of no more than small numbers.
Species without defined stocks typically range across very large
areas and it is unlikely that PIFSC's planned activities, with their
small impact areas, would encounter, much less take more than one third
of the stock. For species with defined stocks but no abundance
estimates available (American Samoa stocks of false killer whale,
rough-toothed dolphin, and spinner dolphin), we note that the
anticipated number of incidents of take by Level B harassment are very
low for each species (i.e., 2-54 takes by Level B harassment per year).
While abundance information is not available for these stocks, we do
not expect that the authorized annual take by Level B harassment would
represent more than one third of any population to be taken and
therefore the total amount of authorized taking would be considered
small relative to the overall population size.
Based on the analysis contained herein of the planned activity
(including the required mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that no more than 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 PIFSC. 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.
Adaptive Management
The regulations governing the take of marine mammals incidental to
PIFSC 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 5-year
regulations for activities that have been associated with marine mammal
mortality.
The reporting requirements associated with this rule are designed
to provide OPR with monitoring data from the previous year to allow
consideration of whether any changes are appropriate. OPR and the PIFSC
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
PIFSC 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.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
Accordingly, NMFS prepared a Programmatic Environmental Assessment
(PEA) to consider the environmental impacts associated with the
issuance of the regulations and LOA to the PIFSC. In 2023, NMFS issued
the Final PEA for Fisheries and Ecosystem Research Conducted and Funded
by the Pacific Islands Fisheries Science Center and signed a Finding of
No Significant Impact (FONSI). The documents can be found at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (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 incidental take
authorizations, NMFS consults internally whenever we propose to
authorize take for endangered or threatened species, in this case with
the Pacific Islands Regional Office.
The NMFS Pacific Islands Regional Office issued a Biological
Opinion under section 7 of the ESA, on the issuance of an LOA to the
PIFSC under section 101(a)(5)(A) of the MMPA by the NMFS Office of
Protected Resources. The Biological Opinion concluded that the action
is not likely to jeopardize the continued existence of any endangered
[[Page 21174]]
or threatened species or result in the destruction or adverse
modification of designated critical habitat.
Classification
The Office of Management and Budget has determined that this 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
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. PIFSC is the sole entity that would be subject to the
requirements of these regulations, and the PIFSC is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received regarding this
certification or on the economic impacts of the rule more generally. As
a result, a regulatory flexibility analysis is not required and none
has been prepared.
This rule does not contain a collection-of-information requirement
subject to the provisions of the Paperwork Reduction Act (PRA) because
the applicant is a Federal agency. Notwithstanding any other provision
of law, no person is required to respond to nor shall a person be
subject to a penalty for failure to comply with a collection of
information subject to the requirements of the PRA unless that
collection of information displays a currently valid OMB control
number. These requirements have been approved by OMB under control
number 0648-0151 and include applications for regulations, subsequent
LOAs, and reports.
Waiver of Delay in Effective Date
NMFS has determined that there is good cause under the
Administrative Procedure Act (5 U.S.C. 553(d)(3)) to waive the 30-day
delay in the effective date of this final rule. No individual or entity
other than the PIFSC is affected by the provisions of these
regulations.
The waiver of the 30-day delay of the effective date of the final
rule will ensure that the MMPA final rule and LOA are in place as soon
as possible to ensure the PIFSC's compliance with the MMPA. Any delay
in finalizing the rule would result in either: (1) A suspension of
planned research, which would disrupt the provision of vital data
necessary for effective management of fisheries; or (2) the PIFSC's
procedural non-compliance with the MMPA (should the PIFSC conduct
research without an LOA), thereby resulting in the potential for
unauthorized takes of marine mammals. Moreover, the PIFSC is ready to
implement the regulations immediately and requested the waiver. For
these reasons, NMFS finds good cause to waive the 30-day delay in the
effective date. In addition, the rule authorizes incidental take of
marine mammals that would otherwise be prohibited under the statute.
Therefore, by granting an exception to the PIFSC, the rule will relieve
restrictions under the MMPA, which provides a separate basis for
waiving the 30-day effective date for the rule.
List of Subjects in 50 CFR Part 219
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: May 7, 2025.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, NMFS amends 50 CFR part 219
as follows:
PART 219--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 219 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. As of May 16, 2025, the sunset date of January 15, 2026, for part
219 added at 86 FR 3868, Jan. 15, 2021, is removed.
Subparts E and F [Reserved]
0
3. Reserve subparts E and F.
0
4. Effective May 16, 2025 through May 15, 2030, add subpart G to part
219 to read as follows:
Subpart G--Taking Marine Mammals Incidental to Pacific Islands
Fisheries Science Center Fisheries Research
Sec.
219.61 Specified activity and specified geographical region.
219.62 Effective dates.
219.63 Permissible methods of taking.
219.64 Prohibitions.
219.65 Mitigation requirements.
219.66 Requirements for monitoring and reporting.
219.67 Letters of Authorization.
219.68 Renewals and modifications of Letters of Authorization.
219.69-219.70 [Reserved]
Subpart G--Taking Marine Mammals Incidental to Pacific Islands
Fisheries Science Center Fisheries Research
Sec. 219.61 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the National Marine
Fisheries Service's (NMFS) Pacific Islands Fisheries Science Center
(PIFSC) and those persons it authorizes or funds to conduct activities
on its behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
research survey program operations.
(b) The taking of marine mammals by PIFSC may be authorized in a
Letter of Authorization (LOA) only if it occurs during fishery research
within the Hawaiian Archipelago, Mariana Archipelago, American Samoa
Archipelago, and Western and Central Pacific Ocean.
Sec. 219.62 Effective dates.
Regulations in this subpart are effective from May 16, 2025 through
May 15, 2030.
Sec. 219.63 Permissible methods of taking.
Under LOAs issued pursuant to Sec. Sec. 216.106 of this chapter
and 219.67, the Holder of the LOA (hereinafter ``PIFSC'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 219.61(b) in the following ways, provided PIFSC
is in compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.
(a) By Level B harassment associated with physical or visual
disturbance of hauled out pinnipeds.
(b) By Level B harassment associated with use of active acoustic
systems.
(c) By Level A harassment, serious injury, or mortality provided
the take is associated with the use of longline gear, trawl gear, or
deployed instruments and traps.
Sec. 219.64 Prohibitions.
Except for the takings described in Sec. Sec. 219.61 and
authorized by a LOA issued under 216.106 of this chapter and this
subpart, it shall be unlawful for any person to do any of the following
in connection with the activities described in Sec. 219.61:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. 216.106 of
this chapter and this subpart;
(b) Take any marine mammal species or stock not specified in such
LOA;
[[Page 21175]]
(c) Take any marine mammal in any manner other than as specified in
the LOA;
(d) Take a marine mammal specified in such LOA after 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 after 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. 219.65 Mitigation requirements.
When conducting the activities identified in Sec. 219.61(a), the
mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and 219.67 must be implemented. These
mitigation measures shall include but are not limited to:
(a) General conditions. (1) PIFSC shall take all necessary measures
to coordinate and communicate in advance of each specific survey with
the National Oceanic and Atmospheric Administration's (NOAA) Office of
Marine and Aviation Operations (OMAO) or other relevant parties on non-
NOAA platforms to ensure that all mitigation measures and monitoring
requirements described herein, as well as the specific manner of
implementation and relevant event-contingent decision-making processes,
are clearly understood and agreed upon. Although these regulations do
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.
(2) PIFSC shall coordinate and conduct briefings at the outset of
each survey and as necessary between the ship's crew (Commanding
Officer or designee(s), as appropriate) and scientific party in order
to explain responsibilities, communication procedures, marine mammal
monitoring protocol, and operational procedures.
(3) PIFSC shall coordinate as necessary on a daily basis during
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
(4) PIFSC shall conduct monitoring for marine mammals when
deploying any type of sampling gear at sea and take action to prevent
and minimize any take of marine mammals by deployed sampling gear.
(5) PIFSC shall implement handling and/or disentanglement protocols
as specified in the guidance that shall be provided to PIFSC survey
personnel.
(b) Vessel strike avoidance. (1) PIFSC must maintain a 100-meter
(m) separation distance between research vessels and large whales
(i.e., baleen whales and sperm whales) at all times. At any time during
a survey or transit, if a crew member or designated marine mammal
observer standing watch sights marine mammals that may intersect with
the vessel course that individual must immediately communicate the
presence of marine mammals to the bridge, and the vessel must take any
necessary action to avoid incidental collisions.
(2) PIFSC must reduce vessel speed to 10 knots (kt) or less when
piloting vessels within 1 kilometer (km; as visibility permits) of
marine mammals.
(c) Trawl survey protocols. (1) PIFSC shall conduct trawl
operations as soon as is practicable upon arrival at the sampling
station.
(2) PIFSC shall initiate marine mammal watches (visual observation)
at least 30 minutes prior to beginning of net deployment, but shall
also conduct monitoring during any pre-set activities including
trackline reconnaissance, conductivity, temperature, and depth (CTD)
casts, and plankton or bongo net hauls. Marine mammal watches shall be
conducted by scanning the surrounding waters with the naked eye and
rangefinding binoculars (or monocular). During nighttime operations,
visual observation shall be conducted using the naked eye and available
vessel lighting.
(3) PIFSC shall implement the move-on rule mitigation protocol, as
described in this paragraph. If one or more marine mammals are observed
within 500 m of the sampling station in the 10 minutes before setting
the trawl gear, and are considered at risk of interacting with the
vessel or research gear, or appear to be approaching the vessel and are
considered at risk of interaction, the PIFSC shall either remain onsite
or move on to another sampling location. If remaining onsite, the set
shall be delayed. If the animals depart or appear to no longer be at
risk of interacting with the vessel or gear, a further 10 minute
observation period shall be conducted. If no further observations are
made or the animals still do not appear to be at risk of interaction,
then the set may be made. If the vessel is moved to a different section
of the sampling area, the move-on rule mitigation protocol would begin
anew. If, after moving on, marine mammals remain at risk of
interaction, the PIFSC shall move again or skip the station. Marine
mammals that are sighted further than 500 m from the vessel shall be
monitored to determine their position and movement in relation to the
vessel to determine whether the move-on rule mitigation protocol should
be implemented. PIFSC may use best professional judgment in making
these decisions.
(4) PIFSC shall maintain visual monitoring effort during the entire
period of time that trawl gear is in the water (i.e., throughout gear
deployment, fishing, and retrieval). If marine mammals are sighted
before the gear is fully removed from the water, PIFSC shall take the
most appropriate action to avoid marine mammal interaction. PIFSC may
use best professional judgment in making this decision. PIFSC must
retrieve gear immediately if there is any indication marine mammals are
captured or entangled in a net or associated gear (e.g., lazy line) and
follow disentanglement protocols approved by the NMFS Office of
Protected Resources (OPR).
(5) If trawling operations have been suspended because of the
presence of marine mammals, PIFSC may resume trawl operations when
practicable only when the animals are believed to have departed the
area. PIFSC may use best professional judgment in making this
determination.
(6) PIFSC shall implement standard survey protocols to minimize
potential for marine mammal interactions, including maximum tow
durations at target depth and maximum tow distance, and shall carefully
empty the trawl as quickly as possible upon retrieval.
(7) Dead fish and bait shall not be discarded from the vessel while
actively fishing. Dead fish and bait shall be discarded after gear is
retrieved and immediately before the vessel leaves the sampling
location for a new area.
(d) Longline survey protocols. (1) PIFSC shall deploy longline gear
as soon as is practicable upon arrival at the sampling station.
(2) PIFSC shall initiate marine mammal watches (visual observation)
no less than 30 minutes (or for the duration of transit between set
locations, if shorter than 30 minutes) prior to both deployment and
retrieval of longline gear. Marine mammal watches shall be conducted by
scanning the surrounding waters with the naked eye and rangefinding
binoculars (or monocular). During nighttime operations, visual
observation shall be conducted using the naked eye and available vessel
lighting.
(3) PIFSC shall implement the move-on rule mitigation protocol, as
described
[[Page 21176]]
in this paragraph. If one or more marine mammals are observed in the
vicinity of the planned location before gear deployment, and are
considered at risk of interacting with the vessel or research gear, or
appear to be approaching the vessel and are considered at risk of
interaction, PIFSC shall either remain onsite or move on to another
sampling location. If remaining onsite, the set shall be delayed. If
the animals depart or appear to no longer be at risk of interacting
with the vessel or gear, a further observation period shall be
conducted. If no further observations are made or the animals still do
not appear to be at risk of interaction, then the set may be made. If
the vessel is moved to a different section of the sampling area, the
move-on rule mitigation protocol would begin anew. If, after moving on,
marine mammals remain at risk of interaction, the PIFSC shall move
again or skip the station. Marine mammals that are sighted shall be
monitored to determine their position and movement in relation to the
vessel to determine whether the move-on rule mitigation protocol should
be implemented. PIFSC may use best professional judgment in making
these decisions. PIFSC must retrieve gear immediately if marine mammals
are believed to be captured/entangled in a net, line, or associated
gear and follow disentanglement protocols approved by the NMFS OPR.
(4) PIFSC shall maintain visual monitoring effort during the entire
period of gear deployment and retrieval. If marine mammals are sighted
before the gear is fully deployed or retrieved, PIFSC shall take the
most appropriate action to avoid marine mammal interaction. PIFSC may
use best professional judgment in making this decision.
(5) If deployment or retrieval operations have been suspended
because of the presence of marine mammals, PIFSC may resume such
operations when practicable only when the animals are believed to have
departed the area. PIFSC may use best professional judgment in making
this decision.
(6) When conducting longline research in Hawai'i, American Samoa,
Guam, the Commonwealth of the Northern Marianas, or exclusive economic
zone (EEZs) of the Pacific Insular Areas, PIFSC shall adhere to the
requirements on commercial longline gear as specified in 50 CFR parts
229, 300, 404, 600, and 665, and shall adhere to the following
procedures when setting and retrieving longline gear:
(i) When shallow-setting anywhere and setting longline gear from
the stern, completely thawed and blue-dyed bait shall be used (two 1-
pound containers of blue-dye shall be kept on the boat for backup).
Fish parts and spent bait with all hooks removed shall be kept for
strategic offal discard. Retained swordfish shall be cut in half at the
head; used heads and livers shall also be used for strategic offal
discard. Setting shall only occur at night and begin 1 hour after local
sunset and finish 1 hour before next sunrise, with lighting kept to a
minimum.
(ii) When deep-setting north of 23[deg] N and setting longline gear
from the stern, 45 gram (g) or heavier weights shall be attached within
1 m of each hook. A line shooter shall be used to set the mainline.
Completely thawed and blue-dyed bait shall be used (two 1-pound
containers of blue-dye shall be kept on the boat for backup). Fish
parts and spent bait with all hooks removed shall be kept for strategic
offal discard. Retained swordfish shall be cut in half at the head;
used heads and livers shall also be used for strategic offal discard.
(iii) When shallow-setting anywhere and setting longline gear from
the side, mainline shall be deployed from the port or starboard side at
least 1 m forward of the stern corner. If a line shooter is used, it
shall be mounted at least 1 m forward from the stern corner. A bird
curtain shall be used aft of the setting station during the set. Gear
shall be deployed so that hooks do not resurface. Forty-five g or
heavier weights shall be attached within 1 m of each hook.
(iv) When deep-setting north of 23[deg] N and setting longline gear
from the side, mainline shall be deployed from the port or starboard
side at least 1 m forward of the stern corner. If a line shooter is
used, it shall be mounted at least 1 m forward from the stern corner. A
specified bird curtain shall be used aft of the setting station during
the set. Gear shall be deployed so that hooks do not resurface. Forty-
five g or heavier weights shall be attached within 1 m of each hook.
(7) Dead fish and bait shall not be discarded from the vessel while
actively fishing. Dead fish and bait shall be discarded after gear is
retrieved and immediately before the vessel leaves the sampling
location for a new area.
(e) Small boat and diver protocols. (1) Surveys and in-water
operations shall be conducted with at least two divers observing for
the proximity of marine mammals, a coxswain driving the small boat, and
a topside spotter. Spotters and coxswains shall look out for divers,
marine mammals, and environmental hazards. Topside spotters may also
work as coxswains, depending on team assignment and boat layout.
(2) Before approaching any shoreline or exposed reef, all observers
shall examine any visible land areas for the presence of marine
mammals. Scientists, divers, and coxswains shall follow best management
practices (BMPs) for boat operations and diving activities, including:
(i) Maintain constant vigilance for the presence of marine mammals.
(ii) Marine mammals shall not be encircled or trapped between
multiple vessels or between vessels and the shore.
(iii) If approached by a marine mammal, the engine shall be put in
neutral and the animal allowed to pass.
(iv) All in-water work not already underway shall be postponed
until whales are beyond 100 yards or other marine mammals are beyond 50
yards from the vessel or diver, unless the work is covered under a
separate permit that allows activity in proximity to marine mammals.
Activity shall commence only after the animal(s) depart the area.
(v) If marine mammals enter the area while in-water work is already
in progress, the activity may continue only when that activity has no
reasonable expectation to adversely affect the animal(s). PIFSC may use
best professional judgment in making this decision.
(vi) Personnel shall make no attempt to feed, touch, ride, or
otherwise intentionally interact with any marine mammals unless
undertaken to rescue a marine mammal or otherwise authorized by another
permit.
(vii) Mechanical equipment shall be monitored to ensure no
entanglements occur with protected species.
(viii) Team members shall immediately respond to an entangled
animal, halting operations and providing an onsite response assessment
(allowing the animal to disentangle itself, assisting with
disentanglement, etc.), unless doing so would compromise human safety.
(f) Marine debris research and removal protocols. (1) Prior to
initiating any marine debris removal operations, marine debris
personnel shall thoroughly examine the beaches and near shore
environments/waters for Hawaiian monk seals before approaching marine
debris sites and initiating removal activities.
(2) Debris shall be retrieved in compliance with all Federal laws,
rules, and regulations governing wildlife in the area. Debris removal
shall occur a minimum distance of 50 yards from all monk seals and a
minimum of 100 yards from female seals with pups.
(g) Bottomfishing protocols. (1) PIFSC shall initiate marine mammal
watches
[[Page 21177]]
(visual observation) no less than 30 minutes (or for the duration of
transit between set locations, if shorter than 30 minutes) prior to
both deployment and retrieval of bottomfishing hook-and-line gear.
Marine mammal watches shall be conducted by scanning the surrounding
waters with the naked eye and rangefinding binoculars (or monocular).
During nighttime operations, visual observation shall be conducted
using the naked eye and available vessel lighting.
(2) PIFSC shall implement the move-on rule mitigation protocol, as
described in this paragraph. If one or more marine mammals are observed
in the vicinity of the planned location before gear deployment, and are
considered at risk of interacting with the vessel or research gear, or
appear to be approaching the vessel and are considered at risk of
interaction, PIFSC shall either remain onsite or move on to another
sampling location. If remaining onsite, the set shall be delayed. If
the animals depart or appear to no longer be at risk of interacting
with the vessel or gear, a further observation period shall be
conducted. If no further observations are made or the animals still do
not appear to be at risk of interaction, then the set may be made. If
the vessel is moved to a different section of the sampling area, the
move-on rule mitigation protocol would begin anew. If, after moving on,
marine mammals remain at risk of interaction, the PIFSC shall move
again or skip the station. Marine mammals that are sighted shall be
monitored to determine their position and movement in relation to the
vessel to determine whether the move-on rule mitigation protocol should
be implemented. PIFSC may use best professional judgment in making
these decisions.
(3) Dead fish and bait shall not be discarded from the vessel while
actively fishing. Dead fish and bait shall be discarded after gear is
retrieved and immediately before the vessel leaves the sampling
location for a new area.
(4) If a hooked fish is retrieved and it appears to the fisher
(based on best professional judgment) that it has been damaged by a
marine mammal, visual monitoring shall be enhanced around the vessel
for the next 10 minutes. Fishing may continue during this time. If a
shark is sighted, visual monitoring may return to normal. If a marine
mammal is seen in the vicinity of a bottomfishing operation, the gear
shall be retrieved immediately and the vessel shall move to another
sampling location where marine mammals are not present. Catch loss and
a ``move on'' for marine mammals shall be tallied on the data sheet.
(5) If bottomfishing gear is lost while fishing, visual monitoring
shall be enhanced around the vessel for the next 10 minutes. Fishing
may continue during this time. If a shark is sighted, visual monitoring
may return to normal. If a marine mammal is observed in the vicinity,
it shall be monitored until a determination can be made (based on best
professional judgment) of whether gear is sighted attached to the
animal, gear is suspected to be on the animal, or gear is not observed
on the animal and it behaves normally. If gear is sighted with gear
attached or suspected to be attached, procedures and actions for
incidental take shall be initiated, as outlined in Sec. 219.66. Gear
loss and a ``move on'' for marine mammals shall be tallied on the data
sheet.
(h) Instrument and trap deployments. (1) PIFSC shall initiate
marine mammal watches (visual observation) no less than 30 minutes (or
for the duration of transit between set locations, if shorter than 30
minutes) prior to both deployment and retrieval of instruments and
traps. Marine mammal watches shall be conducted by scanning the
surrounding waters with the naked eye and rangefinding binoculars (or
monocular).
(2) PIFSC shall implement the move-on rule mitigation protocol, as
described in this paragraph. If one or more marine mammals are observed
in the vicinity of the planned location before gear deployment, and are
considered at risk of interacting with the vessel or research gear, or
appear to be approaching the vessel and are considered at risk of
interaction, PIFSC shall either remain onsite or move on to another
sampling location. If remaining onsite, the instrument or trap
deployment shall be delayed. If the animals depart or appear to no
longer be at risk of interacting with the vessel or gear, a further
observation period shall be conducted. If no further observations are
made or the animals still do not appear to be at risk of interaction,
then the gear may be deployed. If the vessel is moved to a different
section of the sampling area, the move-on rule mitigation protocol
would begin anew. If, after moving on, marine mammals remain at risk of
interaction, the PIFSC shall move again or skip the station. Marine
mammals that are sighted shall be monitored to determine their position
and movement in relation to the vessel to determine whether the move-on
rule mitigation protocol should be implemented. PIFSC may use best
professional judgment in making these decisions. PIFSC must retrieve
gear immediately if marine mammals are believed to be entangled in an
instrument or trap line or associated gear and follow disentanglement
protocols.
Sec. 219.66 Requirements for monitoring and reporting.
(a) Compliance coordination. PIFSC shall designate a compliance
coordinator who shall be responsible for ensuring compliance with all
requirements of any LOA issued pursuant to Sec. Sec. 216.106 of this
chapter and 219.67 and for preparing for any subsequent request(s) for
incidental take authorization.
(b) Visual monitoring program. PIFSC shall comply with the
following monitoring requirements:
(1) Marine mammal visual monitoring shall occur prior to deployment
of trawl nets, longlines, bottomfishing gear, instruments, and traps,
respectively; throughout deployment of gear and active fishing of
research gears (not including longline soak time); prior to retrieval
of longline gear; and throughout retrieval of all research gear.
(2) Marine mammal watches shall be conducted by watch-standers
(those navigating the vessel and/or other crew) at all times when the
vessel is being operated.
(c) Training. (1) PIFSC must conduct annual training for all chief
scientists and other personnel who may be responsible for conducting
dedicated marine mammal visual observations to explain mitigation
measures and monitoring and reporting requirements, mitigation and
monitoring protocols, marine mammal identification, completion of
datasheets, and use of equipment. PIFSC may determine the agenda for
these trainings.
(2) PIFSC shall also dedicate a portion of training to discussion
of best professional judgment, including use in any incidents of marine
mammal interaction and instructive examples where use of best
professional judgment was determined to be successful or unsuccessful.
(3) PIFSC shall 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.
(d) Handling procedures and data collection. (1) PIFSC must develop
and implement standardized marine mammal handling, disentanglement, and
data collection procedures. These standard procedures will be subject
to approval by NMFS OPR and must be complied with by PIFSC if approved.
(2) For any marine mammal interaction involving the release of a
live animal, PIFSC shall collect
[[Page 21178]]
necessary data to facilitate a serious injury determination, when
practicable.
(3) PIFSC shall provide its relevant personnel with standard
guidance and training regarding handling of marine mammals, including
how to identify different species, bring an individual aboard a vessel,
assess the level of consciousness, remove fishing gear, return an
individual to water, and log activities pertaining to the interaction.
(4) PIFSC shall record marine mammal interaction information on
standardized forms, which will be subject to approval by OPR. PIFSC
shall also answer a standard series of supplemental questions regarding
the details of any marine mammal interaction.
(e) Reporting. (1) Marine mammal capture/entanglements (live or
dead) must be reported immediately to the relevant regional stranding
coordinator (Hawai'i Statewide Marine Animal Stranding, Entanglement,
and Reporting Hotline, 888-256-9840; Guam Conservation Office Hotline,
671-688-3297; Commonwealth of the Northern Mariana Islands Division of
Fish and Wildlife Hotline, 670-287-8537; American Samoa Department of
Marine and Wildlife Resources, 684-633-4456), OPR (301-427-8401), and
NMFS Pacific Islands Regional Office (808-725-5000).
(2) PIFSC shall report all incidents of marine mammal interaction
to NMFS's Protected Species Incidental Take database within 48 hours of
occurrence and shall provide supplemental information to OPR upon
request. Information related to marine mammal interaction (animal
captured or entangled in research gear) must include details of survey
effort, full descriptions of any observations of the animals, the
context (vessel and conditions), decisions made, and rationale for
decisions made in vessel and gear handling.
(3) PIFSC shall submit an annual summary report to OPR:
(i) The report must be submitted no later than 90 days following
the end of a given calendar year. The first annual report must cover
the period from the date of issuance of the LOA through the end of that
calendar year and the entire first full calendar year of the
authorization. Subsequent reports will cover only 1 full calendar year.
PIFSC shall provide a final report within 30 days following resolution
of comments on the draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, EM 300,
and ADCP Ocean Surveyor (or equivalent sources) were predominant and
associated pro-rated estimates of actual take;
(B) Summary information regarding use of all longline,
bottomfishing, and trawl gear, including number of sets, tows, etc.,
specific to each gear;
(C) Accounts of surveys where marine mammals were observed during
sampling but no interactions occurred;
(D) 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 and, if released
alive, serious injury determinations;
(E) Summary information related to any disturbance of pinnipeds,
including event-specific total counts of animals present, counts of
reactions according to the three-point scale, and distance of closest
approach;
(F) A written description of any mitigation research investigation
efforts and findings (e.g., line modifications);
(G) A written evaluation of the effectiveness of PIFSC 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; and
(H) A summary of all relevant training provided by PIFSC and any
coordination with NMFS Office of Science and Technology and the Pacific
Islands Regional Office.
(f) Reporting of injured or dead marine mammals. (1) If any
activity defined in Sec. 219.61(a) causes the take of a marine mammal
in a prohibited manner, PIFSC personnel engaged in the research
activity shall immediately cease such activity until such time as an
appropriate decision regarding activity continuation can be made by the
PIFSC Director (or designee). The incident must be reported immediately
to OPR and the NMFS Pacific Islands Regional Office. OPR will review
the circumstances of the prohibited take and assess what measures are
necessary to minimize the likelihood of further prohibited take and
ensure Marine Mammal Protection Act (MMPA) compliance. The immediate
decision made by PIFSC 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).
(2) In the event that PIFSC 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), PIFSC shall immediately report the incident to OPR
and the NMFS Pacific Islands Regional Office. The report must include
the information identified in paragraph (f)(1) of this section.
Activities may continue while OPR reviews the circumstances of the
incident. OPR will work with PIFSC to determine whether additional
mitigation measures or modifications to the activities are appropriate.
(3) In the event that PIFSC discovers an injured or dead marine
mammal and determines that the injury or death is not associated with
or related to the activities defined in Sec. 219.61(a) (e.g.,
previously wounded animal, carcass with moderate to advanced
decomposition, scavenger damage), PIFSC shall report the incident to
OPR and the Pacific Islands Regional Office, NMFS, within 24 hours of
the discovery. PIFSC shall provide photographs or video footage or
other documentation of the stranded animal sighting to OPR.
(4) In the event of a ship strike of a marine mammal by any PIFSC
or partner vessel involved in the activities covered by the
authorization, PIFSC or partner shall immediately report the
information in paragraph (f)(1) of this section, 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.
[[Page 21179]]
Sec. 219.67 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, PIFSC 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, PIFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, PIFSC must apply
for and obtain a modification of the LOA as described in Sec. 219.68.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within 30 days of a determination.
Sec. 219.68 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
219.67 for the activity identified in Sec. 219.61(a) shall be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section); and
(2) OPR determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For an LOA modification or renewal requests by the applicant
that include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), OPR may publish a 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
219.67 for the activity identified in Sec. 219.61(a) may be modified
by OPR under the following circumstances:
(1) OPR may utilize an adaptive management process to modify or
augment the existing mitigation, monitoring, or reporting measures
(after consulting with PIFSC 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 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 PIFSC's monitoring reports from the previous
year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, OPR will
publish a notice of proposed LOA in the Federal Register and solicit
public comment.
(2) If OPR determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in LOAs issued pursuant to Sec. Sec. 216.106 of this
chapter and 219.67, an LOA may be modified without prior notice or
opportunity for public comment. Notice would be published in the
Federal Register within 30 days of the action.
Sec. Sec. 219.69-219.70 [Reserved]
[FR Doc. 2025-08349 Filed 5-15-25; 8:45 am]
BILLING CODE 3510-22-P