Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research, 58981-59013 [2015-24639]

Download as PDF Vol. 80 Wednesday, No. 189 September 30, 2015 Part V Department of Commerce mstockstill on DSK4VPTVN1PROD with RULES2 National Oceanic and Atmospheric Administration 50 CFR Part 219 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research; Final Rule VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\30SER2.SGM 30SER2 58982 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations Antarctic Marine Living Resources Ecosystem). The SWFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. SWFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. A few surveys are conducted onboard commercial fishing vessels, but the SWFSC designs and executes the studies and funds vessel time. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 219 [Docket No. 120416011–5836–02] RIN 0648–BB87 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS’ Office of Protected Resources, upon request of NMFS’ Southwest Fisheries Science Center (SWFSC), hereby issues regulations to govern the unintentional taking of marine mammals incidental to fisheries research conducted in multiple specified geographical regions, over the course of 5 years. These regulations, which allow for the issuance of Letters of Authorization for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. DATES: Effective from October 30, 2015, through October 30, 2020. ADDRESSES: A copy of SWFSC’s application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/ incidental/research.htm. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: SUMMARY: mstockstill on DSK4VPTVN1PROD with RULES2 Executive Summary These regulations, under the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.), establish frameworks for authorizing the take of marine mammals incidental to the SWFSC’s fisheries research activities in three separate specified geographical regions (i.e., the California Current Ecosystem, the Eastern Tropical Pacific, and the VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 Purpose and Need for This Regulatory Action We received an application from the SWFSC requesting five-year regulations and authorization to take multiple species of marine mammals. Take is anticipated to occur by Level B harassment incidental to the use of active acoustic devices in each of the three specified geographical regions, as well as by visual disturbance of pinnipeds in the Antarctic only, and by Level A harassment, serious injury, or mortality incidental to the use of fisheries research gear in the California Current and Eastern Tropical Pacific only. For each specified geographical region, the regulations are valid for five years from the date of issuance. Please see ‘‘Background’’ below for definitions of harassment. Section 101(a)(5)(A) of the MMPA 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 if, after notice and public comment, the agency makes certain findings and issues regulations. These regulations would contain mitigation, monitoring, and reporting requirements. Legal Authority for the Regulatory Action 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 the five-year regulations and any subsequent Letters of Authorization. Summary of Major Provisions Within the Regulations The following provides a summary of some of the major provisions within these regulations for the SWFSC fisheries research activities in the three specified geographical regions. We have determined that the SWFSC’s adherence to the mitigation, monitoring, and reporting measures listed below would achieve the least practicable adverse PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 impact on the affected marine mammals. They include: • Required monitoring of the sampling areas to detect the presence of marine mammals before deployment of pelagic trawl nets or pelagic longline gear. • Required use of marine mammal excluder devices on one type of pelagic trawl net and required use of acoustic deterrent devices on all pelagic trawl nets. • Required implementation of the mitigation strategy known as the moveon rule, which incorporates best professional judgment, when necessary during pelagic trawl and pelagic longline operations. Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as ‘‘an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.’’ Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations Summary of Request On April 25, 2013, we received an adequate and complete request from SWFSC for authorization to take marine mammals incidental to fisheries research activities. We received an initial draft of the request on February 11, 2012, followed by revised drafts on June 29 and December 21, 2012. On May 2, 2013 (78 FR 25703), we published a notice of receipt of SWFSC’s application in the Federal Register, requesting comments and information related to the SWFSC request for thirty days. We received comments from the Marine Mammal Commission, which we considered in development of the notice of proposed rulemaking (80 FR 8166; February 13, 2015) and which are available on the Internet at: www.nmfs.noaa.gov/pr/permits/ incidental/research.htm. SWFSC plans to conduct fisheries research using pelagic trawl gear used at various levels in the water column, pelagic longlines with multiple hooks, bottom-contact trawls, and other gear. If a marine mammal interacts with gear deployed by SWFSC, the outcome could potentially be Level A harassment, serious injury (i.e., any injury that will likely result in mortality), or mortality. However, there is not sufficient information upon which to base a prediction of what the outcome may be for any particular interaction. Therefore, SWFSC has pooled the estimated number of incidents of take resulting from gear interactions, and we have assessed the potential impacts accordingly. SWFSC also uses various active acoustic devices in the conduct of fisheries research, and use of these devices has the potential to result in Level B harassment of marine mammals. Level B harassment of pinnipeds hauled out on ice may also occur, in the Antarctic only, as a result of visual disturbance from vessels conducting SWFSC research. These regulations are valid for five years from the date of issuance. The SWFSC conducts fisheries research surveys in the California Current Ecosystem (CCE), the Eastern Tropical Pacific (ETP), and the Antarctic Marine Living Resources Ecosystem (AMLR). As required by the MMPA, SWFSC’s request is considered separately for each specified geographical region. In the CCE, SWFSC requests authorization to take individuals of seventeen species by Level A harassment, serious injury, or mortality (hereafter referred to as M/SI + Level A) and of 34 species by Level B harassment. In the ETP, SWFSC requests authorization to take VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 individuals of eleven species by M/SI + Level A and of 31 species by Level B harassment. In the AMLR, SWFSC requests authorization to take individuals of seventeen species by Level B harassment. No takes by M/SI + Level A are anticipated in the AMLR. Description of the Specified Activity Overview The SWFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. SWFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. A few surveys are conducted onboard commercial fishing vessels, but the SWFSC designs and executes the studies and funds vessel time. The SWFSC plans to administer and conduct approximately fourteen survey programs over the five-year period. The gear types used fall into several categories: pelagic trawl gear used at various levels in the water column, pelagic longlines, bottom-contact trawls, and other gear. Only use of pelagic trawl and pelagic longline gears are likely to result in interaction with marine mammals. The majority of these surveys also use active acoustic devices. The federal government has a responsibility to conserve and protect living marine resources in U.S. waters and has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside the United States. NOAA has the primary responsibility for managing marine fin and shellfish species and their habitats, with that responsibility delegated within NOAA to NMFS. In order to direct and coordinate the collection of scientific information needed to make informed fishery management decisions, Congress created six Regional Fisheries Science Centers, each a distinct organizational entity and the scientific focal point within NMFS for region-based federal fisheries-related research. This research is aimed at monitoring fish stock recruitment, abundance, survival and biological rates, geographic distribution of species and stocks, ecosystem process changes, and marine ecological research. The SWFSC is the research arm of NMFS in the southwest region of the U.S. The SWFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in the three geographic research areas described below and provides scientific information to support the Pacific Fishery Management Council PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 58983 and numerous other domestic and international fisheries management organizations. Dates and Duration The specified activity may occur at any time during the five-year period of validity of the regulations. Dates and duration of individual surveys are inherently uncertain, based on congressional funding levels for the SWFSC, weather conditions, or ship contingencies. In addition, the cooperative research program is designed to provide flexibility on a yearly basis in order to address issues as they arise. Some cooperative research projects last multiple years or may continue with modifications. Other projects only last one year and are not continued. Most cooperative research projects go through an annual competitive selection process to determine which projects should be funded based on proposals developed by many independent researchers and fishing industry participants. SWFSC survey activity does occur during most months of the year; however, trawl surveys occur during May through June and September and longline surveys are completed during June–July and September. Specified Geographical Regions The SWFSC operates within three research areas: the California Current, Eastern Tropical Pacific, and Antarctic. These three areas were described in detail in our notice of proposed rulemaking (80 FR 8166; February 13, 2015); please see that document for further detail. Detailed Description of Activities A detailed description of SWFSC’s planned activities was provided in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) and is not repeated here. No changes have been made to the specified activities described therein. Comments and Responses We published a notice of proposed rulemaking in the Federal Register on February 13, 2015 (80 FR 8166) and requested comments and information from the public. During the thirty-day comment period, we received letters from the Marine Mammal Commission (Commission) and jointly from The Humane Society of the United States and Whale and Dolphin Conservation (HSUS). The comments and our responses are provided here, and the comments have been posted on the Internet at: www.nmfs.noaa.gov/pr/ permits/incidental/research.htm. Please E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 58984 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations see the comment letters for full rationale behind the recommendations we respond to below. Comment 1: The Commission recommends that we require SWFSC to estimate the numbers of marine mammals taken by Level B harassment incidental to use of active acoustic sources (e.g., echosounders) based on the 120-dB rather than the 160-dB root mean square (rms) threshold. Please see our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for discussion related to acoustic terminology and thresholds. The Commission made the same recommendation in their letter submitted during the 2013 notice of receipt comment period. HSUS reviewed that letter and indicated that they agree and support the Commission’s recommendation. The Commission had also previously recommended that we consult with experts in the fields of sound propagation and marine mammal hearing to revise existing acoustic criteria and thresholds as necessary to specify threshold levels that would be more appropriate for a wider range of sound sources. Response: Continuous sounds are those whose sound pressure level remains above that of the ambient sound, with negligibly small fluctuations in level (NIOSH, 1998; ANSI, 2005), while intermittent sounds are defined as sounds with interrupted levels of low or no sound (NIOSH, 1998). Thus, echosounder signals are not continuous sounds but rather intermittent sounds. Intermittent sounds can further be defined as either impulsive or non-impulsive. Impulsive sounds have been defined as sounds which are typically transient, brief (< 1 sec), broadband, and consist of a high peak pressure with rapid rise time and rapid decay (ANSI, 1986; NIOSH, 1998). Echosounder signals also have durations that are typically very brief (< 1 sec), with temporal characteristics that more closely resemble those of impulsive sounds than non-impulsive sounds, which typically have more gradual rise times and longer decays (ANSI, 1995; NIOSH, 1998). With regard to behavioral thresholds, we consider the temporal and spectral characteristics of echosounder signals to more closely resemble those of an impulse sound than a continuous sound. The Commission suggests that, for certain sources considered here, the interval between pulses would not be discernible to the animal, rendering them effectively continuous. However, echosounder pulses are emitted in a similar fashion as odontocete VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 echolocation click trains. Research indicates that marine mammals, in general, have extremely fine auditory temporal resolution and can detect each signal separately (e.g., Au et al., 1988; Dolphin et al., 1995; Supin and Popov, 1995; Mooney et al., 2009), especially for species with echolocation capabilities. Therefore, it is highly unlikely that marine mammals would perceive echosounder signals as being continuous. The Commission provides numerous references purporting to demonstrate behavioral responses by marine mammals to received levels of sound below 160 dB rms from sources with characteristics similar to those used by SWFSC. However, the vast majority of these references concern acoustic deterrent devices, which we do not believe are similar to SWFSC acoustic sources. In conclusion, echosounder signals are intermittent rather than continuous signals, and the fine temporal resolution of the marine mammal auditory system allows them to perceive these sounds as such. Further, the physical characteristics of these signals indicate a greater similarity to the way that intermittent, impulsive sounds are received. Therefore, the 160-dB threshold (typically associated with impulsive sources) is more appropriate than the 120-dB threshold (typically associated with continuous sources) for estimating takes by behavioral harassment incidental to use of such sources. This response represents the consensus opinion of acoustics experts from NMFS’ Office of Protected Resources and Office of Science and Technology. Finally, we agree with the Commission’s recommendation to revise existing acoustic criteria and thresholds as necessary to specify threshold levels that would be more appropriate for a wider range of sound sources and are currently in the process of producing such revisions. NOAA recognizes, as new science becomes available, that our current categorizations (i.e., impulse versus continuous) may not fully encompass the complexity associated with behavioral responses (e.g., context) and are working toward addressing these issues in future acoustic guidance. Comment 2: The Commission recommends that we develop criteria and guidance for determining when prospective applicants should request taking by Level B harassment incidental to the use of echosounders, sonars, and subbottom profilers, stating that we should follow a consistent approach in assessing the potential for taking from such active acoustic systems. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 Response: We agree with the Commission’s recommendation. Generally speaking, there has been a lack of information and scientific consensus regarding the potential effects of scientific sonars on marine mammals, which may differ depending on the system and species in question as well as the environment in which the system is operated. We are currently working to ensure that the use of these types of active acoustic sources is considered consistently and look forward to the Commission’s advice as we develop guidance as recommended. Comment 3: The Commission notes that we have delineated two categories of acoustic sources, largely based on frequency, with those sources operating at frequencies greater than the known hearing ranges of any marine mammal (i.e., >180 kHz) lacking the potential to cause disruption of behavioral patterns. The Commission recommends that we review the recent scientific literature on acoustic sources with frequencies above 180 kHz (i.e., Deng et al., 2014; Hastie et al., 2014) and incorporate those findings into our criteria and guidance for determining when prospective applicants should request authorization for taking by Level B harassment from the use of echosounders, sonars, and subbottom profilers. Response: We are aware of the referenced literature but did not acknowledge and address those findings in our notice of proposed rulemaking. We appreciate the Commission bringing it to our attention. In general, the referenced work indicates that ‘‘subharmonics’’ could be ‘‘detectable’’ by certain species at distances up to several hundred meters. However, this detectability is in reference to ambient noise, not to NMFS’ established 160-dB threshold for assessing the potential for incidental take for these sources (see also our response to comment #1). Source levels of the secondary peaks considered in these studies—those within the hearing range of some marine mammals—range from 135–166 dB, meaning that these sub-harmonics would either be below the threshold for behavioral harassment or would attenuate to such a level within a few meters. Beyond these important study details, these high-frequency (i.e., Category 1) sources and any energy they may produce below the primary frequency that could be audible to marine mammals would be dominated by a few primary sources (e.g., EK60) that are operated near-continuously— much like other Category 2 sources considered in our assessment of potential incidental take from SWFSC use of active acoustic sources—and the E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations potential range above threshold would be so small as to essentially discount them. Comment 4: HSUS expressed concern that we may not be appropriately accounting for behavioral impacts incidental to SWFSC use of active acoustic sources and noted that such impacts could occur at greater distances than considered in our analysis. Response: Beyond consideration of a different threshold for assessing potential behavioral impacts—which we address above for comment #1—it is not clear what additional or different approaches to impact assessment HSUS might recommend. HSUS states that NMFS’ current relevant acoustic threshold (i.e., 160 dB rms) is the level at which temporary threshold shift is predicted to occur and does not account for behavioral effects. This statement is inaccurate—while we acknowledge that behavioral effects can and have been documented to occur at received levels below 160 dB rms, depending on behavioral context, the current stepfunction paradigm espoused by NMFS provides that behavioral reactions that may be considered as ‘‘take’’ under the MMPA occur upon exposure to any received level at or exceeding 160 dB rms. Under the same paradigm, the onset of temporary threshold shift is considered to occur upon receipt of any sound level between 160 dB rms and either 180 or 190 dB rms, for cetaceans and pinnipeds, respectively. Absent a specific recommendation to consider, we believe that our approach to assessing the potential for behavioral harassment incidental to SWFSC use of active acoustics is appropriate. Comment 5: SWFSC proposed to implement a move-on rule, under which they suspend operations or hauling of gear when marine mammals are observed within a certain distance of the vessel. This measure is intended to reduce the potential for marine mammal interactions. One exception to this measure is for California sea lions, for which density is sufficiently high in typical operation areas in the California Current that SWFSC believes implementation of the move-on rule should only be triggered upon observation of more than five sea lions. HSUS states that the basis for determining a numerical threshold for balancing risk to the affected species and practicability for operations (i.e., six sea lions) is not sufficiently explained. Response: We have determined that implementation of the move-on rule, in concert with other measures described below under ‘‘Mitigation’’, is sufficient to reduce the amount of incidental taking to the level of least practicable VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 adverse impact, as required by the MMPA. However, for California sea lions, there is a tension between the numbers of individuals observed in many sampling locations versus the amount of historical interactions with SWFSC longline research gear, i.e., historical interactions are rare (seven individual sea lions incidentally captured in nine years) while sightings of California sea lions within 1 nm of survey locations is common. Therefore, the expected result of an absolute moveon rule for California sea lions is that certain survey locations would be effectively eliminated from future surveys, while providing marginal benefit to the stock. It is possible that a move-on rule triggered upon observation of a single sea lion, rather than a group of six or more sea lions, may provide additional benefit in reducing potential impacts to the stock. However, because these areas are important to the survey objectives (e.g., sampling target species) developed in accordance with NMFS’ statutory mandates and because implementation of the more restrictive version of the measure for California sea lions is not necessary to reach a finding of negligible impact for California sea lions, we have determined that the measure as described satisfies the standard of least practicable adverse impact. The specific numerical threshold—six or more California sea lions—was based on SWFSC expert knowledge concerning the numbers of California sea lions typically observed in proximity to sampling locations. We will assess this measure on an annual basis during the lifetime of the regulations and would modify the measure through adaptive management should we determine that a more restrictive measure is required to meet the MMPA standard of least practicable adverse impact. Comment 6: SWFSC proposed to prohibit the practice of chumming in order to prevent attractance of marine mammals to longline operations but would allow the practice of discarding spent bait during survey operations. HSUS believes that there is little difference between these two practices and indicates concern that discards of spent bait, in combination with increased densities of sea lions, may result in potential for increased interactions with survey gear. HSUS recommends that we require that bait be retained until all hooks are clear of the water. Response: While we acknowledge that any differentiation between discarding spent bait and chumming may be perceived as a matter of semantics, a PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 58985 substantive distinction is that chumming is an intentional act to lure or attract animals, whereas SWFSC performs bait discard to increase survey efficiency. Interactions with marine mammals during longline surveys have historically been limited to rare incidents involving no more than a single individual California sea lion in any set. There is no information to suggest that this ongoing practice has resulted in any increase in the overall number of interactions, while it has demonstrably not resulted in an increase in the number of animals per interaction. Therefore, we have determined that a prohibition on bait discards is not necessary to reduce the anticipated taking to the level of least practicable adverse impact. However, we will assess the potential inclusion of such a measure on an annual basis during the lifetime of the regulations and will require it through adaptive management should we determine it necessary to satisfy the statutory requirement. Mitigation In order to issue an incidental take authorization under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, ‘‘and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.’’ We provided a full description of the planned mitigation measures, including background discussion related to certain elements of the mitigation plan, in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please see that document for more detail. General Measures Coordination and communication— We require that the SWFSC take all necessary measures to coordinate and communicate in advance of each specific survey with NOAA’s Office of Marine and Aviation Operations (OMAO), or other relevant parties, to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant eventcontingent decision-making processes, are clearly understood and agreed-upon. This may involve description of all required measures when submitting cruise instructions to OMAO or when completing contracts with external entities. SWFSC will coordinate and conduct briefings at the outset of each E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 58986 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations survey and as necessary between ship’s crew (commanding officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. The chief scientist (CS) will be responsible for coordination with the Officer on Deck (OOD; or equivalent on non-NOAA platforms) to ensure that requirements, procedures, and decisionmaking processes are understood and properly implemented. Vessel speed—Vessel speed during active sampling rarely exceeds 5 kn, with typical speeds being 2–4 kn. Transit speeds vary from 6–14 kn but average 10 kn. These low vessel speeds minimize the potential for ship strike. At any time during a survey or in transit, if a crew member standing watch or dedicated marine mammal observer sights marine mammals that may intersect with the vessel course that individual will immediately communicate the presence of marine mammals to the bridge for appropriate course alteration or speed reduction, as possible, to avoid incidental collisions. Other gears—The SWFSC deploys a wide variety of gear to sample the marine environment during all of their research cruises. Many of these types of gear (e.g., plankton nets, video camera and ROV deployments) are not considered to pose any risk to marine mammals and are therefore not subject to specific mitigation measures. In addition, specific aspects of gear design, survey protocols (e.g., number of hooks), and frequency of use indicate that certain types of gears that may otherwise be expected to have the potential to result in take of marine mammals (e.g., bottom longline used in sablefish life history surveys) do not pose significant risk to marine mammals and are not subject to specific mitigation measures. However, at all times when the SWFSC is conducting survey operations at sea, the OOD and/or CS and crew will monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment. Handling procedures—Since the time the notice of proposed rulemaking was published, SWFSC developed marine mammal handling protocols for use in its fisheries and ecosystem research activities that rely on gears that may interact with these species. These protocols draw heavily from existing fisheries observer program placards, training materials and manuals, particularly those using trawl and VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 longline gears. The SWFSC handling protocols follow a step-wise order: (1) Take actions to ensure the health and safety of crew and scientists on board; (2) depending how and where the animal is hooked or entangled, take specific actions to prevent further injury to the animal; (3) take actions to increase the animal’s chances of survival, and (4) record detailed information on the interaction, actions taken and observations of the animal throughout the incident. SWFSC views formalizing this data collection as a key component to evaluating how actual handling compares to handling protocols, and to learning from these incidents both through analysis of interaction reports and through discussions at its annual training sessions. Trawl Survey Visual Monitoring and Operational Protocols The mitigation requirements described here are applicable to all midwater trawl operations conducted by the SWFSC (currently conducted using the Nordic 264 and modified-Cobb nets). Marine mammal watches (visual observation) will be initiated no less than thirty minutes prior to arrival on station to determine if marine mammals are in the vicinity of the planned sample location. Marine mammal watches will be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation will be conducted using the naked eye and available vessel lighting. The visual observation period typically occurs during transit leading up to arrival at the sampling station, rather than upon arrival on station. However, in some cases it may be necessary to conduct a bongo plankton tow or other small net cast prior to deploying trawl gear. In these cases, the visual watch will continue until trawl gear is ready to be deployed. Aside from this required thirty-minute minimum pre-trawl monitoring period, the OOD/CS and crew standing watch will visually scan for marine mammals during all daytime operations. The primary purpose of conducting the pre-trawl visual monitoring period is to implement the move-on rule. If marine mammals are sighted within 1 nm of the planned set location in the thirty minutes before setting the trawl gear, the vessel will transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within the 1 nm exclusion zone, the CS PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 or watch leader may decide to move again or to skip the station. However, the effectiveness of visual monitoring may be limited depending on weather and lighting conditions, and it may not always be possible to conduct visual observations out to 1 nm radial distance. The OOD, CS or watch leader will determine the best strategy to avoid potential takes of marine mammals based on the species encountered and their numbers and behavior, position, and vector relative to the vessel, as well as any other factors. In any case, no trawl gear will be deployed if marine mammals have been sighted within 1 nm of the planned set location during the thirty-minute watch period. In general, trawl operations will be conducted immediately upon arrival on station (and on conclusion of the thirtyminute pre-watch period) in order to minimize the time during which marine mammals (particularly pinnipeds) may become attracted to the vessel. However, in some cases it will be necessary to conduct small net tows (e.g., bongo net) prior to deploying trawl gear in order to avoid trawling through extremely high densities of gelatinous zooplankton that can damage trawl gear. Once the trawl net is in the water, the OOD, CS, and/or crew standing watch will continue to visually monitor the surrounding waters and will maintain a lookout for marine mammal presence as far away as environmental conditions allow. If marine mammals are sighted before the gear is fully retrieved, the most appropriate response to avoid marine mammal interaction will be determined by the professional judgment of the CS, watch leader, OOD and other experienced crew as necessary. This judgment will be based on past experience operating trawl gears around marine mammals (i.e., best professional judgment) and on SWFSC training sessions that will facilitate dissemination of expertise operating in these situations (e.g., factors that contribute to marine mammal gear interactions and those that aid in successfully avoiding such events). Best professional judgment takes into consideration the species, numbers, and behavior of the animals, the status of the trawl net operation (e.g., net opening, depth, and distance from the stern), the time it would take to retrieve the net, and safety considerations for changing speed or course. We recognize that it is not possible to dictate in advance the exact course of action that the OOD or CS should take in any given event involving the presence of marine mammals in proximity to an ongoing trawl tow, given the sheer number of potential variables, combinations of E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations variables that may determine the appropriate course of action, and the need to consider human safety in the operation of fishing gear at sea. Nevertheless, we require a full accounting of factors that shape both successful and unsuccessful decisions and these details will be fed back into SWFSC training efforts and ultimately help to refine the best professional judgment that determines the course of action taken in any given scenario (see further discussion in ‘‘Monitoring and Reporting’’). If trawling operations have been suspended because of the presence of marine mammals, the vessel will resume trawl operations (when practicable) only when the animals are believed to have departed the 1 nm exclusion zone. This decision is at the discretion of the OOD/CS and is dependent on the situation. Standard survey protocols that are expected to lessen the likelihood of marine mammal interactions include standardized tow durations and distances. Standard tow durations of not more than thirty minutes at the target depth will be implemented, excluding deployment and retrieval time (which may require an additional thirty minutes, depending on target depth), to reduce the likelihood of attracting and incidentally taking marine mammals. Short tow durations decrease the opportunity for marine mammals to find the vessel and investigate. Trawl tow distances will be less than 3 nm— typically 1–2 nm, depending on the specific survey and trawl speed—which is expected to reduce the likelihood of attracting and incidentally taking marine mammals. In addition, care will be taken when emptying the trawl to avoid damage to marine mammals that may be caught in the gear but are not visible upon retrieval. The gear will be emptied as quickly as possible after retrieval in order to determine whether or not marine mammals are present. The vessel’s crew will clean trawl nets prior to deployment to remove prey items that might attract marine mammals. Catch volumes are typically small with every attempt made to collect all organisms caught in the trawl. Marine mammal excluder devices— Excluder devices are specialized modifications, typically used in trawl nets, which are designed to reduce bycatch by allowing non-target taxa to escape the net. These devices generally consist of a grid of bars fitted into the net that allow target species to pass through the bars into the codend while larger, unwanted taxa (e.g., turtles, sharks, mammals) strike the bars and are ejected through an opening in the net. VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 Marine mammal excluder devices (MMED) have not been proven to be fully effective at preventing marine mammal capture in trawl nets (e.g., Chilvers, 2008) and are not expected to prevent marine mammal capture in SWFSC trawl surveys. It is difficult to effectively test such devices, in terms of effectiveness in excluding marine mammals as opposed to effects on target species catchability, because realistic field trials would necessarily involve marine mammal interactions with trawl nets. Use of artificial surrogates in field trials has not been shown to be a realistic substitute (Gibson and Isakssen, 1998). Nevertheless, we believe it reasonable to assume that use of MMEDs may reduce the likelihood of a given marine mammal interaction with trawl gear resulting in mortality. We do not infer causality, but note that annual marine mammal interactions with the Nordic 264 trawl net have been much reduced (relative to 2008) since use of the MMED began. For full details of design and testing of the SWFSC MMED designed for the Nordic 264 net, please see Dotson et al. (2010). Two types of nets are used in SWFSC pelagic trawl surveys: The Nordic 264 and the modified-Cobb midwater trawls. All Nordic 264 trawl nets will be fitted with MMEDs specially designed to allow marine mammals caught during trawling operations an opportunity to escape. Modified-Cobb trawl nets are considerably smaller than Nordic 264 trawl nets (80 m2 versus 380 m2 net opening), are fished at slower speeds, and have a different shape and functionality than the Nordic 264. Very few marine mammal interactions with SWFSC pelagic trawl gear have involved the modified-Cobb net (five of thirty total incidents from 2006–14). Due to the smaller size and different functionality of the modified-Cobb, there is no suitable MMED yet available. However, the SWFSC plans to perform research and design work to develop an effective excluder, if possible, which will not appreciably affect the catchability of the net and therefore maintain continuity of the fisheries research dataset. Please see ‘‘Monitoring and Reporting’’ for additional discussion. Acoustic deterrent devices—Acoustic deterrent devices (pingers) are underwater sound-emitting devices that have been shown to decrease the probability of interactions with certain species of marine mammals when fishing gear is fitted with the devices. Pingers will be deployed during all pelagic trawl operations and on all types of midwater trawl nets (i.e., the Nordic 264 and modified-Cobb nets), with two PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 58987 to four pingers placed along the footrope and/or headrope. The vessel’s crew will ensure that pingers are operational prior to deployment. Pingers are manufactured by STM Products (Model DDD–03H), with the following attributes: (1) Operational depth of 10– 200 m; (2) tones range from 100 ms to seconds in duration; (3) variable frequency of 5–500 kHz; and (4) maximum source level of 176 dB rms re 1 mPa at 30–80 kHz. AMLR bottom trawl surveys—The SWFSC has no documented interactions with marine mammals in bottom trawl gear used periodically in the AMLR, and standard trawl protocols described above are not required for these surveys. However, SWFSC staff conduct visual and acoustic surveys prior to deploying bottom trawl gear to assess the bathymetry and whether marine mammals are present in the area. These visual and acoustic surveys have resulted in very few detections of marine mammals during trawling operations. Visual and acoustic monitoring will continue as a regular part of future bottom trawl surveys in the AMLR study area, and if detections increase, indicating a higher potential for marine mammal interactions, we will consider the need to implement the standard trawl protocols described above during AMLR bottom trawl surveys. Longline Survey Visual Monitoring and Operational Protocols Visual monitoring requirements for all pelagic longline surveys are the same as those described above for trawl surveys. Please see that section for full details of the visual monitoring and move-on protocols. These protocols are not required for bottom longline or vertical longline operations, as there have been no documented marine mammal interactions for SWFSC use of these gears and because we believe there is very little risk of interaction even without these measures. In summary, requirements for pelagic longline surveys are to: (1) Conduct visual monitoring for a period not less than thirty minutes prior to arrival on station; (2) implement the move-on rule if marine mammals are observed within a 1-nm exclusion zone around the vessel; (3) deploy gear as soon as possible upon arrival on station (contingent on clearance of the exclusion zone); and (4) maintain visual monitoring effort throughout deployment and retrieval of the longline gear. As was described for trawl gear, the OOD, CS, or watch leader will use best professional judgment to minimize the risk to marine mammals from potential gear interactions during E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 58988 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations 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 1-nm exclusion zone. If marine mammals are detected during retrieval operations and are considered to be at risk, haul-back may be postponed. These decisions are at the discretion of the OOD/CS and are dependent on the situation. There is one exception to these requirements for longline gear. If five or fewer California sea lions are sighted within the 1-nm exclusion zone during the thirty-minute pre-clearance period, longline gear may be deployed (observations of more than five California sea lions would trigger the move-on rule or suspension of gear deployment or retrieval, as appropriate and, for the latter, as indicated by best professional judgment). As for trawl surveys, some standard survey protocols are expected to minimize the potential for marine mammal interactions. Typical soak times are two to four hours, measured from the time the last hook is in the water to when the first hook is brought out of the water (but may be as long as eight hours when targeting swordfish). SWFSC longline protocols specifically prohibit chumming (releasing additional bait to attract target species to the gear). However, spent bait may be discarded during gear retrieval while gear is still in the water. However, if marine mammal interactions with longline gear increase or if SWFSC staff observe that this practice may contribute to increased potential for interactions, we will consider the need to retain spent bait until all gear is retrieved. We have carefully evaluated the SWFSC’s planned mitigation measures and considered a range of other measures in the context of ensuring that we prescribe the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 practicability of the measure for applicant implementation. Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below: (1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal). (2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only). (3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only). (4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only). (5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time. (6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation. Based on our evaluation of the SWFSC’s proposed measures, as well as other measures we considered, we have determined that these mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Description of Marine Mammals in the Area of the Specified Activity We previously reviewed SWFSC’s species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 accuracy and completeness and referred readers to Sections 3 and 4 of SWFSC’s application, as well as to NMFS’ Stock Assessment Reports (SARs; www.nmfs.noaa.gov/pr/sars/). We also provided information related to all species with expected potential for occurrence in the specified geographical regions where SWFSC plans to conduct the specified activities, summarizing information related to the population or stock, including potential biological removal (PBR). Please see Tables 3–5 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for that information, which is not reprinted here. Potential Effects of the Specified Activity on Marine Mammals and Their Habitat We provided a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Specifically, we considered potential effects to marine mammals from ship strike, physical interaction with various gear types, use of active acoustic sources, and visual disturbance of pinnipeds, as well as effects to prey species and to acoustic habitat. The information is not reprinted here. Estimated Take by Incidental Harassment, Serious Injury, or Mortality Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Serious injury means any injury that will likely result in mortality (50 CFR 216.3). Take of marine mammals incidental to SWFSC research activities are anticipated to occur as a result of (1) injury or mortality due to gear interaction (CCE and ETP only; 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 on ice resulting from close proximity of research vessels (AMLR only; Level B harassment only). E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations Estimated Take Due to Gear Interaction In order to estimate the number of potential incidents of take that could occur by M/SI + Level A through gear interaction, we first considered SWFSC’s record of past such incidents, and then considered in addition other species that may have similar vulnerabilities to SWFSC midwater trawl and pelagic longline gear as those species for which we have historical interaction records. Historical interactions with SWFSC research gear, which have only occurred in the California Current Ecosystem, were described in Tables 10 and 11 of our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please see that document for more information. In order to produce the most precautionary take estimates possible, we use here the most recent five years of data that includes 2008 (e.g., 2008–12). As previously noted, there were dramatically more of both interactions and animals captured (41 animals captured in fourteen interactions across both longline and trawl gear) in the year 2008 than in any other year (an average of 4.3 animals captured in 2.8 interactions in all other years). We believe a five-year time frame provides enough data to adequately capture yearto-year variation in take levels, while reflecting recent environmental conditions and survey protocols that may change over time. The SWFSC has no recorded interactions with any gear other than midwater trawl and pelagic longline. We do not anticipate any future interactions in any other gears, including the bottom trawl gear periodically employed by the SWFSC in the AMLR. Although some historical interactions resulted in the animal(s) being released alive, no serious injury determinations (NMFS, 2012a; 2012b) were made, and it is possible that some of these animals later died. In order to use these historical interaction records in a precautionary manner as the basis for the take estimation process, and because we have no specific information to indicate whether any given future interaction might result in M/SI versus Level A harassment, we conservatively assume that all interactions equate to mortality. In order to evaluate the potential vulnerability of additional species to midwater trawl and pelagic longline gear, we consulted NMFS’ List of Fisheries (LOF), which classifies U.S. commercial fisheries into one of three categories according to the level of incidental marine mammal M/SI that is known to occur on an annual basis over the most recent five-year period (generally) for which data has been analyzed. We provided this information, as presented in the 2014 LOF (79 FR 58989 14418; April 14, 2014), in Table 13 of our notice of proposed rulemaking (80 FR 8166; February 13, 2015) and do not reproduce it here. California Current Ecosystem—In order to estimate the potential number of incidents of M/SI + Level A that could occur incidental to the SWFSC’s use of midwater trawl and pelagic longline gear in the CCE over the fiveyear period from 2015–19, we first look at the four species described that have been taken historically and then evaluate the potential vulnerability of additional species to these gears. Table 1 shows the five-year annual average captures of these four species and the projected five-year totals for this proposed rule, for both trawl and longline gear. In order to produce precautionary estimates, we calculate the annual average for the designated five-year period (2008–12), round up to the nearest whole number, and assume that this number may be taken in each future year. This is precautionary in part because we include 2008 in the fiveyear average, which skews the data for all species captured in trawl gear (though not for longline). These estimates are based on the assumption that annual effort (e.g., total annual trawl tow time) over the proposed fiveyear authorization period will not exceed the annual effort during the period 2008–12. TABLE 1—ANNUAL AVERAGE CAPTURES (2008–12) AND PROJECTED FIVE-YEAR TOTAL FOR HISTORICALLY CAPTURED SPECIES 2008 Gear Species Trawl ............. Pacific white-sided dolphin ............... California sea lion ............................. Northern right whale dolphin ............ Northern fur seal ............................... California sea lion ............................. Longline ........ 2009 2010 2011 2012 Maximum for any set 1 Average per year Projected 5-year total 2 15 15 6 3 2 3 1 0 0 1 3 0 0 0 1 7 1 0 0 0 4 0 0 0 1 11 9 6 1 1 6.4 3.4 1.2 0.6 1 35 20 10 5 5 1 The maximum number of individual animals captured in a single trawl tow or longline set, 2008–12. estimated total is the product of the 2008–12 annual average rounded up to the nearest whole number and multiplied by the five-year timespan of the proposed rule. mstockstill on DSK4VPTVN1PROD with RULES2 2 The In order to estimate a number of individuals that could potentially be captured in SWFSC research gear for those species not historically captured, we first determine which species may have vulnerability to capture in a given gear. As noted above, we provided information about commercial fisheries interactions with gear similar to that used by SWFSC in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Where there are documented incidents of M/SI incidental to relevant commercial fisheries, we noted whether we believe those incidents provide sufficient basis VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 upon which to infer vulnerability to capture in SWFSC research gear. Information related to incidental M/SI in relevant commercial fisheries is not, however, the sole determinant of whether it may be appropriate to authorize M/SI + Level A incidental to SWFSC survey operations. A number of factors (e.g., species-specific knowledge regarding animal behavior, overall abundance in the geographic region, density relative to SWFSC survey effort, feeding ecology, propensity to travel in groups commonly associated with other species historically taken) were taken into account to determine whether a PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 species may have a similar vulnerability to certain types of gear as historically taken species. In some cases, we have determined that species without documented M/SI may nevertheless be vulnerable to capture in SWFSC research gear. Similarly, we have determined that some species groups with documented M/SI are not likely to be vulnerable to capture in SWFSC gear. These decisions were described in detail in our notice of proposed rulemaking and no new information has been presented. Determinations regarding species that may be vulnerable to E:\FR\FM\30SER2.SGM 30SER2 58990 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations capture in SWFSC research gear have not changed. Of the species determined to be vulnerable to capture in a given gear, we then determine which may have a similar propensity to capture in a given gear as a historically captured species (Table 1) and which likely do not. For the former, we assume that, given similar propensity, it is possible that a worst-case scenario of take in a single trawl tow or longline set could occur while at the same time contending that, absent significant range shifts or changes in habitat usage, capture of a species not historically captured would likely be a very rare event. The former assumption also accounts for the likelihood that, for species that often travel in groups, an incident involving capture of that species is likely to involve more than one individual. For example, we believe that the Risso’s dolphin is potentially vulnerable to capture in midwater trawl gear and may have similar propensity to capture in that gear as does the Pacific whitesided dolphin. Because the greatest number of Pacific white-sided dolphins captured in any one trawl tow was eleven individuals (see Table 2), we assume that eleven Risso’s dolphins could also be captured in a single incident. However, in recognition of the fact that any incident involving the capture of Risso’s dolphins would likely be a rare event, we authorize a total taking over the five-year period of the number that may result from a single, worst-case incident (eleven dolphins). While we do not necessarily believe that eleven Risso’s dolphins would be captured in a single incident—and that more capture incidents involving fewer individuals could occur, as opposed to a single, worst-case incident—we believe that this is a reasonable approach to estimating potential incidents of M/SI + Level A while balancing what could happen in a worst-case scenario with the potential likelihood that no incidents of capture would actually occur. The historical capture of northern right whale dolphins in 2008 provides an instructive example of a situation where a worst-case scenario (six dolphins captured in a single trawl tow) did occur, but overall capture of this species was very rare (no other capture incidents before or since). Separately, for those species that we believe may have a vulnerability to capture in given gear but that we do not believe may have a similar propensity to capture in that gear as a historically captured species, we assume that capture would be a rare event that could involve multiple individuals captured in a single incident or one or two individuals captured in one or two incidents. For example, from the LOF we infer vulnerability to capture in trawl gear for the Dall’s porpoise but do not believe that this species has a similar propensity for interaction in trawl gear as any historically captured species. Therefore, we assume that capture would represent a rare event that could occur in any year of the fiveyear period of authorization and may involve one or more individuals. For these species we authorize a total taking by M/SI + Level A of five individuals over the five-year timespan. These examples are provided to illustrate the process. It is also possible that a captured animal may not be able to be identified to species with certainty. Certain pinnipeds and small cetaceans are difficult to differentiate at sea, especially in low-light situations or when a quick release is necessary. For example, a captured delphinid that is struggling in the net may escape or be freed before positive identification is made. Therefore, the SWFSC requested the authorization of incidental M/SI + Level A for two unidentified pinnipeds (one each in trawl and longline) and one unidentified small cetacean (in trawl only) over the course of the five-year period of authorization. Table 2 summarizes total estimated take due to gear interaction in the CCE; these estimates are unchanged from those provided in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please see that document for additional detail on the take estimation process and full rationale for determinations regarding species vulnerabilities. TABLE 2—TOTAL ESTIMATED M/SI + LEVEL A DUE TO GEAR INTERACTION IN THE CCE, 2015–19 mstockstill on DSK4VPTVN1PROD with RULES2 Species Estimated 5-year total, midwater trawl 1 Estimated 5-year total, pelagic longline 1 Kogia spp.2 ............................................................................................................................ Bottlenose dolphin (all stocks) 3 ............................................................................................ Bottlenose dolphin (CA/OR/WA offshore) 4 ........................................................................... Bottlenose dolphin (CA coastal) 4 .......................................................................................... Striped dolphin ....................................................................................................................... Short-beaked common dolphin .............................................................................................. Long-beaked common dolphin .............................................................................................. Pacific white-sided dolphin .................................................................................................... Northern right whale dolphin ................................................................................................. Risso’s dolphin ....................................................................................................................... Short-finned pilot whale ......................................................................................................... Harbor porpoise 4 ................................................................................................................... Dall’s porpoise ....................................................................................................................... Northern fur seal 5 .................................................................................................................. California sea lion .................................................................................................................. Steller sea lion ....................................................................................................................... Harbor seal 4 .......................................................................................................................... Northern elephant seal .......................................................................................................... Unidentified pinniped ............................................................................................................. Unidentified cetacean ............................................................................................................ .......................... .......................... 8 3 11 11 11 35 10 11 .......................... 5 5 5 20 9 9 5 1 1 1 1 .......................... .......................... 1 1 1 .......................... .......................... 1 1 .......................... .......................... .......................... 5 1 .......................... .......................... 1 .......................... 1 Please Total, trawl + longline 1 1 8 3 12 12 12 35 10 12 1 5 5 5 25 10 9 5 2 1 see Table 1 and preceding text for derivation of take estimates. expect that only one Kogia spp. may be taken over the five-year timespan and that it could be either a pygmy or dwarf sperm whale. 3 As a species believed to have similar propensity for capture in trawl gear as that demonstrated by the Pacific white-sided dolphin, we assume that eleven bottlenose dolphins could be captured over the five-year timespan. Total potential take of bottlenose dolphins in trawl gear has been apportioned by stock according to typical occurrence of that stock relative to SWFSC survey locations. We assume that a maximum of one total take of a bottlenose dolphin from either stock may occur in longline gear. 4 Incidental take may be of animals from any stock, excluding Washington inland waters stocks. 5 Incidental take may be of animals from either the eastern Pacific or California stocks. 2 We VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations Eastern Tropical Pacific—The SWFSC does not currently conduct longline surveys in the ETP, but plans to over the five-year period of authorization. The take estimates presented here reflect that likelihood. Assuming that longline surveys will be conducted in the ETP, the SWFSC anticipates that it will deploy an equal number (or less) of longline sets in the ETP relative to the number of sets currently being deployed in the CCE. The process described above for the CCE was used in determining vulnerability and appropriate take estimates for species in the ETP. We assume that a similar level of interaction with pelagic longline gear as that demonstrated by the California sea lion in the CCE could occur in the ETP, and also assume that the South American sea lion may have similar propensity for interaction with longline gear as that demonstrated by the California sea lion. For all other species listed in Table 3, we infer vulnerability to pelagic longline gear in the ETP from the 2014 LOF, and assume that capture would likely be a rare event occurring at most once over the five-year period proposed 58991 for these regulations. We also authorize incidental M/SI + Level A for one unidentified pinniped over the course of the five-year period of authorization. Table 3 summarizes total estimated take due to gear interaction in the ETP; these estimates are unchanged from those provided in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please see that document for additional detail on the take estimation process and full rationale for determinations regarding species vulnerabilities. TABLE 3—TOTAL ESTIMATED M/SI + LEVEL A DUE TO GEAR INTERACTION IN THE ETP, 2015–19 Estimated 5-year total, pelagic longline 1 Species Dwarf sperm whale .................................................................................................................................................... Rough-toothed dolphin .............................................................................................................................................. Bottlenose dolphin ..................................................................................................................................................... Striped dolphin ........................................................................................................................................................... Pantropical spotted dolphin 2 ..................................................................................................................................... Short-beaked common dolphin 2 ............................................................................................................................... Long-beaked common dolphin .................................................................................................................................. Risso’s dolphin ........................................................................................................................................................... False killer whale ....................................................................................................................................................... Short-finned pilot whale ............................................................................................................................................. California sea lion ...................................................................................................................................................... South American sea lion ........................................................................................................................................... Unidentified pinniped ................................................................................................................................................. 1 Please 1 1 1 1 1 1 1 1 1 1 5 5 1 see Tables 1 and preceding text for derivation of take estimates. take may be of animals from any stock. 2 Incidental mstockstill on DSK4VPTVN1PROD with RULES2 Estimated Take Due to Acoustic Harassment As described in our notice of proposed rulemaking (80 FR 8166; February 13, 2015; ‘‘Potential Effects of the Specified Activity on Marine Mammals’’), we believe that SWFSC use of active acoustic sources has, at most, the potential to cause Level B harassment of marine mammals. In order to attempt to quantify the potential for Level B harassment to occur, NMFS (including the SWFSC and acoustics experts from other parts of NMFS) developed an analytical framework considering characteristics of the active acoustic systems described in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) under Description of Active Acoustic Sound Sources, their expected patterns of use in each of the three SWFSC operational areas, and characteristics of the marine mammal species that may interact with them. We believe that this quantitative assessment benefits from its simplicity and consistency with current NMFS acoustic guidance regarding Level B harassment but caution that, based on a number of deliberately precautionary assumptions, the resulting take estimates should be seen as a likely VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 substantial overestimate of the potential for behavioral harassment to occur as a result of the operation of these systems. The assessment paradigm for active acoustic sources used in SWFSC fisheries research is relatively straightforward and has a number of key simplifying assumptions. In particular, we do not consider marine mammal functional hearing ranges, and it is possible that certain species may not hear certain signals produced through SWFSC use of active acoustic sources. Therefore, and due to other simplifying assumptions, these exposure estimates may be conservative. 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, the appropriate threshold is 160 dB re 1 mPa (rms). Estimating the number of exposures at the specified received level requires several steps: (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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 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 E:\FR\FM\30SER2.SGM 30SER2 58992 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations foraging and transit. We described the approach used (including methods for estimating each of the calculations described above) and the assumptions made that result in conservative estimates in significant detail in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). There have been no changes made to the approach, the informational inputs, or the results. Therefore, we do not repeat the discussion here and refer the reader to the notice. Summaries of the results are provided in Tables 4–6 below. TABLE 4—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT IN THE CCE 1 Species Shallow Gray whale ............... Humpback whale ...... Minke whale ............. Sei whale .................. Fin whale .................. Blue whale ................ Sperm whale ............ Kogia spp. ................ Cuvier’s beaked whale .................... Baird’s beaked whale Mesoplodont beaked whales ................... Bottlenose dolphin .... Striped dolphin ......... Long-beaked common dolphin .......... Short-beaked common dolphin .......... Pacific white-sided dolphin .................. Northern right whale dolphin .................. Risso’s dolphin ......... Killer whale ............... Short-finned pilot whale .................... Harbor porpoise ....... Dall’s porpoise .......... Guadalupe fur seal ... Northern fur seal ...... California sea lion .... Steller sea lion ......... Harbor seal ............... Northern elephant seal ....................... Deep X X X X X X ................ ................ Volumetric density (animals/km3) 3 4 0.01913 ................ ................ ................ ................ ................ ................ X X ................ ................ Area density (animals/km2) 2 Estimated Level B harassment, 0–200 m EK60 ME70 Estimated Level B harassment, >200 m SX90 EK60 Total SX90 0.00083 0.00072 0.00009 0.00184 0.00136 0.00170 0.00109 0.09565 0.00415 0.00360 0.00045 0.00920 0.00680 0.00340 0.00218 100 4 4 0 10 7 4 2 34 1 1 0 3 2 1 1 212 9 8 1 20 15 8 5 0 0 0 0 0 0 41 27 0 0 0 0 0 0 11 7 346 14 13 1 33 24 65 42 X X 0.00382 0.00088 0.00764 0.00176 8 2 3 1 17 4 93 21 25 6 146 34 ................ X X X ................ ................ 0.00103 0.00178 0.01667 0.00206 0.00890 0.08335 2 9 87 1 3 30 5 20 184 25 0 0 7 0 0 40 32 301 X ................ 0.01924 0.09620 100 35 213 0 0 348 X ................ 0.30935 1.54675 1,616 555 3,421 0 0 5,592 X ................ 0.02093 0.10465 109 38 231 0 0 378 X X X ................ ................ ................ 0.00975 0.01046 0.00071 0.04875 0.05230 0.00355 51 55 4 17 19 1 108 116 8 0 0 0 0 0 0 176 188 13 ................ X X X X X X X X ................ ................ ................ ................ ................ ................ ................ 0.00031 4 0.05493 0.00062 0.18873 0.37765 0.03705 1.68275 1.19000 0.29165 0.25200 1 197 395 39 1,758 1,243 305 263 0 68 135 13 604 427 105 90 1 417 835 82 3,721 2,632 645 557 8 0 0 0 0 0 0 0 2 0 0 0 0 0 0 0 12 682 1,365 134 11,791 5,363 1,141 993 ................ X 4 0.12400 0.24800 259 89 548 3,023 824 4,743 5 0.03775 0.07553 4 0.00741 4 0.65239 4 0.29675 4 0.06316 1 Please see our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for full details related to elements of this table. density estimates from Barlow and Forney (2007) unless otherwise indicated. density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding with defined depth strata. 4 Density estimates derived by SWFSC from SAR abundance estimates and notional study area of 1,000,000 km2. 5 ManTech-SRS Technologies (2007) estimated a harbor porpoise density for coastal and inland waters of Washington, which is used as the best available proxy here. There are no known density estimates for harbor porpoises in SWFSC survey areas in the CCE. 2 All 3 Volumetric TABLE 5—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT IN THE ETP 1 mstockstill on DSK4VPTVN1PROD with RULES2 Species Shallow Deep Area density (animals/km2) 2 Volumetric density (animals/km3) 3 Estimated Level B harassment, 0–200 m EK60 ME70 Estimated Level B harassment, >200 m EK60 Humpback whale ...... Minke whale ............. Bryde’s whale ........... Sei whale .................. Fin whale .................. Blue whale ................ Sperm whale ............ VerDate Sep<11>2014 X X X X X X ................ 19:57 Sep 29, 2015 ................ ................ ................ ................ ................ ................ X Jkt 235001 PO 00000 0.00013 4 0.00001 0.00049 0.00000 0.00003 4 0.00019 4 0.00019 Frm 00012 Fmt 4701 0.00067 0.00003 0.00244 0.00000 0.00015 0.00097 0.00039 Sfmt 4700 1 0 2 0 0 1 0 E:\FR\FM\30SER2.SGM Total SX90 0 0 0 0 0 0 0 0 0 2 0 0 1 0 30SER2 0 0 0 0 0 0 4 SX90 0 0 0 0 0 0 0 1 0 4 0 0 2 4 58993 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations TABLE 5—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT IN THE ETP 1—Continued Species Shallow Deep Area density (animals/km2) 2 Volumetric density (animals/km3) 3 Estimated Level B harassment, 0–200 m EK60 ME70 Estimated Level B harassment, >200 m EK60 Dwarf sperm whale .. Cuvier’s beaked whale .................... Longman’s beaked whale .................... Mesoplodont beaked whales ................... Rough-toothed dolphin ....................... Bottlenose dolphin .... Striped dolphin ......... Pantropical spotted dolphin .................. Spinner dolphin ........ Long-beaked common dolphin .......... Short-beaked common dolphin .......... Fraser’s dolphin ........ Dusky dolphin ........... Risso’s dolphin ......... Melon-headed whale Pygmy killer whale ... False killer whale ..... Killer whale ............... Short-finned pilot whale .................... Guadalupe fur seal ... California sea lion .... South American sea lion ........................ Northern elephant seal ....................... SX90 ................ X 4 0.00053 0.00105 1 0 1 11 1 14 ................ X 4 0.00094 0.00187 2 0 1 19 2 24 ................ X 5 0.00004 0.00007 0 0 0 1 0 1 ................ X 4 0.00119 0.00237 2 0 1 25 2 30 X X X ................ ................ ................ 0.00504 0.01573 0.04516 0.02521 0.07864 0.22582 25 78 223 4 13 39 16 48 139 0 0 0 0 0 0 45 139 401 X X ................ ................ 6 0.12263 7 0.04978 0.61315 0.24889 606 246 105 43 377 153 0 0 0 0 1,088 442 X ................ 0.01945 0.09725 96 17 60 0 0 173 X X X X X X X X ................ ................ ................ ................ ................ ................ ................ ................ 8 0.14645 0.73227 0.06774 0.01050 0.02587 0.01063 0.00913 0.00932 0.00199 723 67 10 26 10 9 9 2 126 12 2 4 2 2 2 0 451 42 6 16 7 6 6 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1,300 121 18 46 19 17 17 3 ................ X X X ................ ................ 10 0.16262 0.05520 0.03705 0.81310 55 37 803 9 6 139 34 23 500 574 0 0 51 0 0 723 66 1,442 X ................ 10 0.16262 0.81310 803 139 500 0 0 1,442 ................ X 9 0.12400 0.24800 245 43 153 2,578 229 3,248 4 0.01355 0.00210 0.00517 4 0.00213 4 0.00183 4 0.00186 4 0.00040 4 0.02760 9 0.00741 1 Please see our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for full details related to elements of this table. see footnotes to Table 4 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015); densities calculated by SWFSC from sources listed. Note that values presented here are rounded to five digits, whereas the volumetric densities are calculated from the unrounded values. Densities derived from abundance estimates given in Gerrodette et al. (2008) calculated using given abundances divided by ETP area (sum of stratum areas given in first line of Table 1 in that publication). Densities calculated by SWFSC from abundance estimates reported in Wade and Gerrodette (1993) or, for those not reported in that publication, calculated from sighting data collected on board SWFSC cetacean and ecosystem assessment surveys in the ETP during 1998–2000, 2003, and 2006 using number of sightings (n), mean group size (s), total distance on effort (L) and effective strip width (w) (i.e., D = n*s/2/w/L). 3 Volumetric density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding with defined depth strata. 4 The most recent abundance estimates are as reported in Table 4 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). SWFSC considered these species sufficiently rare in the core study area during 2006 survey effort to not warrant attempting to estimate abundance (Gerrodette et al., 2008), but did estimate the unpublished ETP densities reported here. 5 The most recent abundance estimate was reported in Barlow (2006) (see Table 4 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015)). SWFSC estimated the unpublished ETP density reported here from sighting data collected during SWFSC surveys in 1998– 2000, 2003, and 2006. 6 Given density is for northeastern offshore stock of pantropical spotted dolphins, and is calculated as stock abundance divided by the summed areas of Core, Core2, and N. Coastal strata (Gerrodette et al., 2008). This is the largest density value for the three stocks of spotted dolphin in the ETP and is conservatively used here to calculate potential Level B takes of spotted dolphin in the ETP. 7 Given density is for the eastern stock of spinner dolphins. This is the largest density value for the three stocks of spinner dolphin in the ETP and is conservatively used here to calculate potential Level B takes of spinner dolphin in the ETP. There is no estimate of abundance for the Central American stock of spinner dolphins. 8 Abundance estimate from which density estimate is derived includes parts of northern and southern stocks and all of the central stock (Gerrodette et al., 2008). There are no stock-specific abundance estimates. 9 No abundance information exists for Guadalupe fur seals or northern elephant seals in the ETP. Therefore, we use density estimates from the CCE (Table 4) as a reasonable proxy. 10 There are no available density estimates for California sea lions or South American sea lions in the ETP. The SWFSC reports that California sea lions are typically observed in the ETP only along the coast of Baja California, Mexico. Therefore, we estimate density for the California sea lion in the ETP using the upper bound of abundance for western Baja California (87,000; Lowry and Maravilla-Chavez, 2005) divided by the area of the N. Coastal stratum from Gerrodette et al., (2008). In the absence of other information, we use this value as a reasonable proxy for the South American sea lion. 2 Please mstockstill on DSK4VPTVN1PROD with RULES2 Total SX90 VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\30SER2.SGM 30SER2 58994 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations TABLE 6—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC ANNUAL ESTIMATES OF LEVEL B HARASSMENT IN THE AMLR 1 Shallow Southern right whale ............................ Humpback whale ................................. Antarctic minke whale .......................... Fin whale .............................................. Blue whale ........................................... Sperm whale ........................................ Arnoux’ beaked whale ......................... Southern bottlenose whale .................. Hourglass dolphin ................................ Killer whale ........................................... Long-finned pilot whale ........................ Spectacled porpoise ............................ Antarctic fur seal .................................. Southern elephant seal ........................ Weddell seal ........................................ Crabeater seal ..................................... Leopard seal ........................................ X X X X X ................ ................ ................ X X ................ X X ................ X X X Deep Area density (animals/km2) 3 0.0008 ................ ................ ................ ................ ................ X X X ................ ................ X ................ ................ X ................ ................ ................ 3 0.0676 3 0.0043 3 0.08391 4 0.00012 4 0.00065 5 0.0065 3 0.0065 3 0.0086 3 0.0077 3 0.00757 6 0.0086 3 0.09996 3 0.0006 3 0.0007 3 0.0013 3 0.0009 Estimated Level B harassment, 0–200 m Estimated Level B harassment, >200 m EK60 Species Volumetric density (animals/km3) 2 EK60 0.004 0.338 0.0215 0.41955 0.0006 0.0013 0.013 0.013 0.043 0.0385 0.01514 0.043 0.4998 0.0012 0.0035 0.0065 0.0045 1 92 6 114 0 0 4 4 12 11 4 12 136 0 1 2 1 0 0 0 0 0 3 33 33 0 0 39 0 0 3 0 0 0 Total 1 92 6 114 0 3 37 37 12 11 43 12 136 3 1 2 1 1 Please see our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for full details related to elements of this table. density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding with defined depth strata. 3 Densities are the largest values recorded during AMLR surveys from 2006/07 through 2010/11. Please see Table 24. 4 See footnotes to Table 5; densities calculated by SWFSC from sources listed. 5 There is no available information for this species; therefore, we use the southern bottlenose whale as source of proxy information. However, this species is considered uncommon relative to the southern bottlenose whale (Taylor et al., 2008); therefore, this is a conservative estimate. 6 There is no available information for this species; therefore, we use the hourglass dolphin as source of proxy information. However, although considered to potentially have a circumpolar sub-Antarctic distribution, this species is seen only rarely at sea (Hammond et al., 2008) and use of this value likely produces a conservative estimate. 2 Volumetric Estimated Take Due to Physical Disturbance, Antarctic Estimated take due to physical disturbance could potentially happen in the AMLR only as a result of the unintentional approach of SWFSC vessels to pinnipeds hauled out on ice, and would result in no greater than Level B harassment. During Antarctic ecosystem surveys conducted in the austral winter (i.e., June 1 through August 31), it is expected that shipboard activities may result in behavioral disturbance of some pinnipeds. It is likely that some pinnipeds on ice will move or flush from the haul-out into the water in response to the presence or sound of SWFSC survey vessels. Behavioral responses may be considered according to the scale shown in Table 7. We consider responses corresponding to Levels 2–3 to constitute Level B harassment. TABLE 7—SEAL RESPONSE TO DISTURBANCE Type of response Definition 1 ....................... Alert ......................................... 2 ....................... Movement ................................ 3 ....................... mstockstill on DSK4VPTVN1PROD with RULES2 Level Flight ........................................ Head orientation in response to disturbance. This may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, or changing from a lying to a sitting position. Movements away from the source of disturbance, ranging from short withdrawals over short distances to hurried retreats many meters in length. All retreats (flushes) to the water, another group of seals, or over the ice. The SWFSC has estimated potential incidents of Level B harassment due to physical disturbance (Table 8) using the vessel distance traveled (20,846 km) during a typical AMLR survey, an effective strip width of 200 m (animals are assumed to react if they are less than 100 m from the vessel; see below), and the estimated population density for each species (Table 6). Although there is likely to be variation between individuals and species in reactions to a passing research vessel—that is, some VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 animals assumed to react in this calculation will not react, and others assumed not to react because they are outside the effective strip width may in fact react—we believe that this approach is a reasonable effort towards accounting for this potential source of disturbance and have no information to indicate that the approach is biased either negatively or positively. SWFSC used an effective strip width of 200 m (i.e., 100 m on either side of a passing vessel) to be consistent with the regional PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 marine mammal viewing guidelines that NMFS has established for Alaska, which restrict approaches to marine mammals to a distance of 100 m or greater in order to reduce the potential to cause inadvertent harm. Alaska is believed to have the most similar environment to the Antarctic of all regions for which NMFS has established viewing guidelines. Each estimate is the product of the species-specific density, annual line-kilometers, and the effective stripwidth. E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations 58995 TABLE 8—ESTIMATED ANNUAL LEVEL B HARASSMENT OF PINNIPEDS ASSOCIATED WITH AMLR VESSEL TRANSECTS Density (animals/km2) Species Antarctic fur seal ...................................................................................................................................................... Southern elephant seal ............................................................................................................................................ Weddell seal ............................................................................................................................................................ Crabeater seal ......................................................................................................................................................... Leopard seal ............................................................................................................................................................ Summary of Estimated Incidental Take authorization on an annual basis for each specified geographical region, as Here we provide summary tables detailing the total incidental take Estimated Level B harassment 0.09996 0.0006 0.0007 0.0013 0.0009 417 3 3 5 4 well as other information relevant to the negligible impact analyses. TABLE 9—SUMMARY INFORMATION RELATED TO ANNUAL TAKE AUTHORIZATION IN THE CCE, 2015–19 Species 1 mstockstill on DSK4VPTVN1PROD with RULES2 Gray whale ........................... Humpback whale ................. Minke whale ......................... Sei whale ............................. Fin whale .............................. Blue whale ........................... Sperm whale ........................ Kogia spp. ............................ Cuvier’s beaked whale ......... Baird’s beaked whale ........... Mesoplodont beaked whales Bottlenose dolphin (all stocks) 6 ............................ Bottlenose dolphin (CA/OR/ WA offshore) 6 .................. Bottlenose dolphin (CA coastal)6 ........................... Striped dolphin ..................... Long-beaked common dolphin ................................... Short-beaked common dolphin ................................... Pacific white-sided dolphin .. Northern right whale dolphin Risso’s dolphin ..................... Killer whale 7 ........................ Short-finned pilot whale ....... Harbor porpoise 7 ................. Dall’s porpoise ..................... Guadalupe fur seal .............. Northern fur seal 7 (PI/EP) ... Northern fur seal 7 (CA) ....... California sea lion ................ Steller sea lion ..................... Harbor seal 7 ........................ Northern elephant seal ........ Unidentified cetacean .......... Unidentified pinniped ........... Total annual Level B harassment authorization Percent of estimated population Total M/SI + Level A authorization, 2015–19 Estimated maximum annual M/ SI + Level A 2 346 14 13 1 33 24 65 42 146 34 40 1.8 0.7 2.7 0.8 1.1 1.5 6.7 7.3 2.2 4.0 5.7 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0.2 0 0 0 n/a n/a n/a n/a n/a n/a n/a 2.7 n/a n/a n/a — — — — — — — 7.4 — — — ↑ ↑ ? ? ↑ ? ? ? ↓ ? ↓ 32 n/a 1 n/a n/a — n/a 32 9 3.2 8 2 5.5 36.4 ? 32 301 9 9.9 2.8 3 12 1 2.6 2.4 82 41.7 3.2 → ? 348 0.3 12 2.6 610 0.4 ↑ 5,592 378 176 188 13 12 682 1,365 134 8 11,555 8 236 5,363 1,141 993 4,743 n/a n/a 1.4 1.4 2.1 3.0 15.3 1.6 23.4 3.3 1.8 1.8 1.8 1.8 10 1.8 4.0 3.8 n/a n/a 12 35 10 12 0 1 5 5 0 5 2.6 7.2 2.2 2.6 0 0.2 1.2 1.2 0 1.2 3,440 171 48 39 n/a 4.6 21 257 n/a 403 0.1 4.2 4.6 6.7 — 4.3 5.7 0.5 — 0.3 ? ? ? ? ? ? ? ? ↑ ↑ 25 10 9 5 1 2 5.4 2.4 2 1.2 n/a n/a 9,200 1,552 1,343 4,382 n/a n/a 0.1 0.2 0.1 0.03 — — ↑ ↑ ↑/→ ↑ n/a n/a PBR 3 % PBR 4 Stock trend 5 Please see preceding text and tables and our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for details. 1 For species with multiple stocks in CCE or for species groups (Kogia spp. and Mesoplodont beaked whales), indicated level of take could occur to individuals from any stock or species (not including Washington inland waters stocks of harbor porpoise and harbor seal). 2 This column represents the total number of incidents of M/SI + Level A that could potentially accrue to the specified species or stock and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To reach this total, we add one to the total for each pinniped or cetacean that may be captured in trawl gear and one to the total for each pinniped that may be captured in longline gear. This represents the potential that the take of an unidentified pinniped or small cetacean could accrue to any given stock captured in that gear. The take authorization is formulated as a five-year total; the annual average is used only for purposes of negligible impact analysis. We recognize that portions of an animal may not be taken in a given year. 3 See Table 3 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) and following discussion for more detail regarding PBR. 4 Estimated maximum annual M/SI + Level A expressed as a percentage of PBR. 5 See relevant SARs for more information regarding stock status and trends. Interannual increases may not be interpreted as evidence of a trend. For harbor seals, the CA stock is increasing, while the OR/WA coastal stock may have reached carrying capacity and appears stable. There are no evident trends for any harbor porpoise stock or for offshore killer whales. 6 Total potential take of bottlenose dolphins in trawl gear has been apportioned by stock according to typical occurrence of that stock relative to SWFSC survey locations. We assume that only one total take of a bottlenose dolphin from either stock may occur in longline gear; therefore the estimated annual maximum numbers for bottlenose dolphin reflect the stock-specific trawl estimate plus one for the longline take plus one for the potential take of an unidentified cetacean. VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\30SER2.SGM 30SER2 58996 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations 7 These species have multiple stocks in the CCE. Values for ‘‘percent of estimated population’’ and ‘‘PBR’’ (where relevant) calculated for the stock with the lowest population abundance and/or PBR (as appropriate). This approach assumes that all indicated takes would accrue to the stock in question, which is a very conservative assumption. Stocks in question are the southern resident killer whale, Morro Bay harbor porpoise, California northern fur seal, and OR/WA coastal harbor seal. 8 Calculated on the basis of relative abundance; i.e., of 6,083 total estimated incidents of Level B harassment, we would expect on the basis of relative abundance in the study area that 98 percent would accrue to the Pribilof Islands/Eastern Pacific stock and two percent would accrue to the California stock. 9 Calculated assuming that all 32 estimated annual incidents of Level B harassment occur to a given stock. 10 A range is provided for Steller sea lion abundance. We have used the lower bound of the given range for calculation of this value. TABLE 10—ANNUAL TAKE AUTHORIZATION IN THE ETP, 2015–19 Total annual Level B harassment authorization Species 1 Percent of estimated population 1 Total M/SI + Level A authorization, 2015–19 Estimated maximum annual M/SI + Level A 2 1 0 4 0 0 2 4 0.04 0 0.04 0 0 0.1 0.1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 n/a n/a n/a n/a n/a n/a n/a 14 0.1 1 0.2 88 (0.2) 24 0.1 0 0 n/a — 1 0.1 0 0 n/a — 30 0.1 0 0 n/a — 45 139 401 0.04 0.04 0.04 1 1 1 0.2 0.2 0.2 897 (0.02) 2,850 (0.01) 8,116 (0.002) 0.02 0.01 0.002 1,088 442 5 0.4 5 0.1 1 0 0.2 0 12,334 (0.002) n/a 0.002 — 173 0.05 1 0.2 2,787 (0.01) 1,300 121 18 46 0.04 0.04 0.04 0.04 1 0 0 1 0.2 0 0 0.2 25,133 (0.001) n/a n/a 831 (0.02) 19 17 17 3 0.04 0.04 0.04 0.04 0 0 1 0 0 0 0.2 0 n/a n/a 244 (0.1) n/a 723 66 1,442 0.1 6 0.9 1.4 1 0 5 0.2 0 1.2 4,751 (0.004) n/a 1,050 (0.1) 1,442 1.0 5 1.2 1,500 (0.1) 3,248 6 2.6 0 0 n/a — n/a n/a 1 n/a n/a — mstockstill on DSK4VPTVN1PROD with RULES2 Humpback whale Minke whale ......... Bryde’s whale ....... Sei whale ............. Fin whale .............. Blue whale ........... Sperm whale ........ Dwarf sperm whale ................ Cuvier’s beaked whale ................ Longman’s beaked whale ................ Mesoplodont beaked whales Rough-toothed dolphin .............. Bottlenose dolphin Striped dolphin ..... Pantropical spotted dolphin ........ Spinner dolphin .... Long-beaked common dolphin ...... Short-beaked common dolphin ...... Fraser’s dolphin ... Dusky dolphin ...... Risso’s dolphin ..... Melon-headed whale ................ Pygmy killer whale False killer whale Killer whale ........... Short-finned pilot whale ................ Guadalupe fur seal California sea lion South American sea lion ............. Northern elephant seal ................... Unidentified pinniped ............ PBR 3 % PBR 4 — — — — — — — 0.2 0.01 0.001 — — 0.02 — — 0.1 — 0.004 — 0.1 0.1 Please see preceding text and tables and our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for details. 1 For species with multiple stocks in ETP or for species groups (Mesoplodont beaked whales), indicated level of take could occur to individuals from any stock or species. 2 This column represents the total number of incidents of M/SI + Level A that could potentially accrue to the specified species and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To reach this total, we add one to the total for each pinniped that may be captured in longline gear. This represents the potential that the take of an unidentified pinniped could accrue to any given species captured in that gear. The take authorization is formulated as a five-year total; the annual average is used only for purposes of negligible impact analysis. We recognize that portions of an animal may not be taken in a given year. 2 For M/SI + Level A resulting from gear interaction, a five-year take estimate was developed. Annual take estimate presented for reference; we recognize that portions of animals may not be captured or entangled in gear. For purposes of negligible impact analysis (later in this document), we add authorized takes for unidentified pinnipeds to total for all relevant species. 3 PBR values calculated by SWFSC; a pooled PBR was calculated for all stocks of the pantropical spotted dolphin (see Table 4 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015)). 4 Estimated maximum annual M/SI + Level A expressed as a percentage of PBR. 5 Evaluated against the stock with the lowest estimated abundance. For spinner dolphin, there is no abundance estimate for the Central American stock. 6 There are no abundance estimates for these species in the ETP. We use the CCE abundance estimates as proxies in these calculations. VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations 58997 TABLE 11—ANNUAL TAKE AUTHORIZATION IN THE AMLR, 2015–19 Estimated annual Level B harassment (acoustic exposure) Species Estimated annual Level B harassment (on-ice disturbance) Total annual Level B harassment authorization Percent of estimated population 1 1 92 6 114 0 3 37 37 12 11 43 12 136 3 1 2 1 0 0 0 0 0 0 0 0 0 0 0 0 417 3 3 5 4 1 92 6 114 0 3 37 37 12 11 43 12 553 6 4 7 5 0.1 1.0 0.03 2.4 0 0.02 n/a 0.1 0.01 0.04 0.02 n/a 0.02 0.001 3 0.001 3 0.0001 3 0.002 Southern right whale .............................................................. Humpback whale ................................................................... Antarctic minke whale ............................................................ Fin whale ............................................................................... Blue whale ............................................................................. Sperm whale .......................................................................... Arnoux’ beaked whale 2 ......................................................... Southern bottlenose whale .................................................... Hourglass dolphin .................................................................. Killer whale ............................................................................ Long-finned pilot whale .......................................................... Spectacled porpoise 2 ............................................................ Antarctic fur seal .................................................................... Southern elephant seal .......................................................... Weddell seal .......................................................................... Crabeater seal ....................................................................... Leopard seal .......................................................................... Please see preceding text and tables and our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for details. 1 See Table 5 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for abundance information. 2 There is no available abundance information for these species. See ‘‘Small Numbers Analyses’’ below for further discussion. 3 A range is provided for these species’ abundance. We have used the lower bound of the given range for calculation of these values. mstockstill on DSK4VPTVN1PROD with RULES2 Analyses and Determinations Here we provide separate negligible impact analyses and small numbers analyses for each of the three specified geographical regions for which we issue regulations. We received no public comments or new information indicating any deficiencies in our preliminary determinations, as provided in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Those determinations and associated analyses are reproduced here. Negligible Impact Analyses NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as ‘‘. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.’’ A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ by mortality, serious injury, and Level A or Level B harassment, we consider other factors, such as the likely nature of any behavioral responses (e.g., intensity, duration), the context of any such responses (e.g., critical reproductive time or location, migration), as well as effects on habitat. We also evaluate the number, intensity, VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 and context of estimated takes by evaluating this information relative to population status. The impacts from other past and ongoing anthropogenic activities are incorporated into these analyses via their impacts on the environmental baseline (e.g., as reflected in the density/distribution and status of the species, population size and growth rate). To avoid repetition, the majority of our analysis applies to all the species listed in Tables 3–5 of the notice of proposed rulemaking (80 FR 8166; February 13, 2015), given that the anticipated effects of SWFSC’s research activities on marine mammals are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below. In 1988, Congress amended the MMPA, with provisions for the 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 set allowable take levels incidental to commercial fishing operations led NMFS to suggest a new and simpler conceptual means for assuring that incidental take does not cause any marine mammal species or stock to be reduced or to be maintained PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 below the lower limit of its Optimum Sustainable Population (OSP) level. That concept (Potential Biological Removal; PBR) was incorporated in the 1994 amendments to the MMPA, wherein Congress enacted MMPA sections 117 and 118, establishing a new regime governing the incidental taking of marine mammals in commercial fishing operations and stock assessments. PBR, which is defined by the MMPA (16 U.S.C. 1362(20)) as ‘‘the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population,’’ is one tool that can be used to help evaluate the effects of M/SI on a marine mammal stock. OSP is defined by the MMPA (16 U.S.C. 1362(9)) as ‘‘the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.’’ A primary goal of the MMPA is to ensure that each stock of marine mammal either does not have a level of human-caused M/SI that is likely to cause the stock to be reduced below its OSP level or, if the stock is depleted (i.e., below its OSP level), does not have a level of human-caused mortality and serious injury that is likely to delay restoration of the stock to OSP level by more than ten percent in comparison with recovery time in the absence of human-caused M/SI. E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 58998 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations PBR appears within the MMPA only in section 117 (relating to periodic stock assessments) and in portions of section 118 describing requirements for take reduction plans for reducing marine mammal bycatch in commercial fisheries. PBR was not designed as an absolute threshold limiting human activities, but as a means to evaluate the relative impacts of those activities on marine mammal stocks. Specifically, assessing M/SI relative to a stock’s PBR may signal to NMFS the need to establish take reduction teams in commercial fisheries and may assist NMFS and existing take reduction teams in the identification of measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below a stock’s PBR. That is, where the total annual humancaused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather may prioritize working with a take reduction team to further mitigate the effects of fishery activities via additional bycatch reduction measures. Since the introduction of PBR, NMFS has used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries managementrelated provisions of the MMPA, including those within section 101(a)(5)(E) related to the taking of ESAlisted marine mammals incidental to commercial fisheries (64 FR 28800; May 27, 1999). The MMPA requires that PBR be estimated in stock assessment reports and that it be used in applications related to the management of take incidental to commercial fisheries (i.e., the take reduction planning process described in section 118 of the MMPA), but nothing in the MMPA requires the application of PBR outside the management of commercial fisheries interactions with marine mammals. Although NMFS has not historically applied PBR outside the context of sections 117 and 118, NMFS recognizes that as a quantitative tool, PBR may be useful in certain instances for evaluating the impacts of other human-caused activities on marine mammal stocks. In this analysis, we consider incidental M/ SI relative to PBR for each affected stock, in addition to considering the interaction of those removals with incidental taking of that stock by harassment, within our evaluation of the likely impacts of the proposed activities on marine mammal stocks and in determining whether those impacts are likely to be negligible. Our use of PBR in this case does not make up the entirety of our impact assessment, but VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 rather is being utilized as a known, quantitative metric for evaluating whether the proposed activities are likely to have a population-level effect on the affected marine mammal stocks. For the purposes of analyzing this specified activity, NMFS acknowledges that some of the fisheries research activities use similar gear and may have similar effects, but on a smaller scale, as marine mammal take by commercial fisheries. The application of PBR for this specified activity of fisheries research allows NMFS to inform the take reduction team process which uses PBR to evaluate marine mammal bycatch in commercial fisheries due to the similarities of both activities. California Current Ecosystem—Please refer to Table 9 for information relating to this analysis. As described in greater depth previously (see ‘‘Acoustic Effects’’, in our notice of proposed rulemaking (80 FR 8166; February 13, 2015)), we do not believe that SWFSC use of active acoustic sources has the likely potential to cause any effect exceeding Level B harassment of marine mammals. In addition, for the majority of species, the authorized annual take by Level B harassment is very low in relation to the population abundance estimate (less than ten percent) for each stock. We have produced what we believe to be conservative estimates of potential incidents of Level B harassment. The procedure for producing these estimates, described in detail in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) and summarized above in ‘‘Estimated Take Due to Acoustic Harassment’’, represents NMFS’ best effort towards balancing the need to quantify the potential for occurrence of Level B harassment due to production of underwater sound with a general lack of information related to the specific way that these acoustic signals, which are generally highly directional and transient, interact with the physical environment and to a meaningful understanding of marine mammal perception of these signals and occurrence in the areas where SWFSC operates. The sources considered here have moderate to high output frequencies (10 to 180 kHz), generally short ping durations, and are typically focused (highly directional) to serve their intended purpose of mapping specific objects, depths, or environmental features. In addition, some of these sources can be operated in different output modes (e.g., energy can be distributed among multiple output beams) that may lessen the likelihood of perception by and PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 potential impacts on marine mammals in comparison with the quantitative estimates that guide our proposed take authorization. In particular, low-frequency hearing specialists (i.e., mysticetes) and certain pinnipeds (i.e., otariids) are less likely to perceive or, given perception, to react to these signals than the quantitative estimates indicate. These groups have reduced functional hearing at the higher frequencies produced by active acoustic sources considered here (e.g., primary operating frequencies of 40–180 kHz) and, based purely on their auditory capabilities, the potential impacts are likely much less (or non-existent) than we have calculated as these relevant factors are not taken into account. However, for purposes of this analysis, we assume that the take levels proposed for authorization will occur. As described previously, there is some minimal potential for temporary effects to hearing for certain marine mammals (i.e., odontocete cetaceans), but most effects would likely be limited to temporary behavioral disturbance. Effects on individuals that are taken by Level B harassment will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity (e.g., Southall et al., 2007). There is the potential for behavioral reactions of greater severity, including displacement, but because of the directional nature of the sources considered here and because the source is itself moving, these outcomes are unlikely and would be of short duration if they did occur. Although there is no information on which to base any distinction between incidents of harassment and individuals harassed, the same factors, in conjunction with the fact that SWFSC survey effort is widely dispersed in space and time, indicate that repeated exposures of the same individuals would be very unlikely. We now consider the level of taking by M/SI + Level A proposed for authorization. First, it is likely that required injury determinations will show some undetermined number of gear interactions to result in Level A harassment rather than serious injury and that, therefore, our authorized take numbers are overestimates with regard solely to M/SI. In addition, we note that these take levels are likely precautionary overall when considering that: (1) Estimates for historically taken species were developed assuming that the annual average number of takes from 2008–12, which is heavily influenced by E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations inclusion of a year where dramatically more marine mammals were incidentally taken than any other year on record, would occur in each year from 2015–19; and that (2) the majority of species for which take authorization is proposed have never been taken in SWFSC surveys. However, assuming that all of the takes proposed for authorization actually occur, we assess these quantitatively by comparing to the calculated PBR for each stock. Estimated M/SI for all stocks is significantly less than PBR (below ten percent, even when making the unlikely assumption that all takes for species with multiple stocks would accrue to the stock with the lowest PBR) with the exception of the two bottlenose dolphin stocks. The annual average take by M/SI + Level A for these stocks—which for each assumes that the single take of a bottlenose dolphin in longline gear that is proposed for authorization occurs for that stock, as well as that the single take of an unidentified cetacean proposed for authorization occurs—is, however, well below the PBR (takes representing 36 and 42 percent). We also note that, for the California coastal stock, the PBR is likely biased low because the population abundance estimate, which is based on photographic markrecapture surveys, does not reflect that approximately 35 percent of dolphins encountered lack identifiable dorsal fin marks (Defran and Weller, 1999). If 35 percent of all animals lack distinguishing marks, then the true population size (and therefore PBR) would be approximately 450–500 animals (i.e., approximately forty–fifty percent larger than the current estimate) (Carretta et al., 2015). The California coastal stock is believed to be stable, based on abundance estimates from 1987–89, 1996–98, and 2004–05 (Dudzik et al., 2006), and current annual human-caused M/SI is considered to be insignificant and approaching zero (Carretta et al., 2015). No population trends are known for the offshore stock. However, these proposed levels of take do not take into consideration the potential efficacy of the mitigation measures proposed by the SWFSC. Although potentially confounded by other unknown factors, incidental take of marine mammals in SWFSC survey gear (particularly trawl nets) has decreased significantly from the high in 2008 since the measures proposed here were implemented in 2009. We believe this demonstrates the likely potential for reduced takes of any species, including bottlenose dolphins, relative to these take estimates which are formulated VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 based on the level of taking that occurred in 2008. For certain species of greater concern, we also evaluate the proposed take authorization for Level B harassment in conjunction with that proposed for M/ SI + Level A. For the bottlenose dolphin, if all acoustic takes occurred to a single stock, it would comprise 9.9 percent of the California coastal stock and only 3.2 percent of the offshore stock. However, it is unlikely that all of these takes would accrue to a single stock and the significance of this magnitude of Level B harassment is even lower. We do not consider the proposed level of acoustic take for bottlenose dolphin to represent a significant additional population stressor when considered in context with the proposed level of take by M/ SI + Level A. Harbor porpoise are known to demonstrate increased sensitivity to acoustic signals in the frequency range produced by some SWFSC active acoustic sources (see discussion above under ‘‘Acoustic Effects’’). The total annual taking by Level B harassment proposed for authorization for harbor porpoise would likely be distributed across all five stocks of this species that occur in the CCE. Moreover, because the SWFSC does not regularly operate the surveys described above within the confines of Morro Bay, Monterey Bay, or San Francisco Bay, and because SWFSC survey effort is sparsely distributed in space and time, we would expect any incidents of take occurring to animals of those stocks to be transient events, largely occurring to individuals of those populations occurring outside those bays but within the general limit of harbor porpoise occurrence (i.e., the 200-m isobath). Finally, approximately 95 percent of annual SWFSC linekilometers traveled using active acoustic sources are beyond the 200-m isobaths. This was not taken into account in the calculation of acoustic take estimates; therefore, these estimates are likely substantial overestimates of the number of incidents of Level B harassment that may occur for harbor porpoise. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the planned mitigation measures, we find that the total marine mammal take from SWFSC’s fisheries research activities will have a negligible impact on the affected marine mammal species or stocks in the California Current Ecosystem. In summary, this finding of negligible impact is founded on the following factors: (1) The possibility of PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 58999 injury, serious injury, or mortality from the use of active acoustic devices may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment from the use of active acoustic devices consist of, at worst, temporary and relatively minor modifications in behavior; (3) the predicted number of incidents of combined Level A harassment, serious injury, and mortality are at insignificant levels relative to all affected stocks but two; (4) the predicted number of incidents of both Level B harassment and potential M/SI likely represent overestimates; and (5) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In addition, no M/SI is proposed for authorization for any species or stock that is listed under the ESA or considered depleted under the MMPA. In combination, we believe that these factors demonstrate that the specified activity will have only short-term effects on individuals (resulting from Level B harassment) and that the total level of taking will not impact rates of recruitment or survival sufficiently to result in population-level impacts. Eastern Tropical Pacific—Please refer to Table 10 for information relating to this analysis. The entirety of the qualitative discussion provided above for the California Current Ecosystem is applicable to SWFSC use of active acoustic sources in the ETP, and is not repeated here. As for the CCE, we compare the maximum annual take estimate to the calculated PBR level. However, proposed take by M/SI + Level A is substantially less than one percent (in most cases, less than a tenth of a percent) of population abundance for all species for which such take is proposed to be authorized and, as for the CCE, these proposed levels of take are likely overestimates. We do propose to authorize one occurrence of M/SI over five years for the pantropical spotted dolphin; two of the three stocks of this species in the ETP are considered depleted under the MMPA. Therefore, although the maximum annual take estimate for this species is extremely low relative to the PBR level (0.002 percent), we provide additional discussion. In the ETP, yellowfin tuna are known to associate with several species of dolphin, including spinner, spotted, and common dolphins. As the ETP tuna purse-seine fishery began in the late 1950s, incidental take of dolphins increased to very high levels and continued through the 1960s and into the 1970s (Perrin, 1969). Through a E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 59000 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations series of combined actions, including passage of the MMPA in 1972, subsequent amendments, regulations, and mitigation measures, dolphin bycatch in the ETP has since decreased 99 percent in the international fishing fleet, and was eliminated by the U.S. fleet (Gerrodette and Forcada, 2005). However, the northeastern offshore and coastal stocks of spotted dolphin are believed to have declined roughly eighty and sixty percent, respectively, from pre-exploitation abundance estimates (Perrin, 2009). Although incidental take by the international fishing fleet is believed to have declined to the low hundreds of individuals annually (Perrin, 2009), the populations have not grown toward recovery as rapidly as expected (e.g., the population trend for the northeastern offshore stock is flat; Wade et al., 2007). Continued (non-lethal) chase and capture in the fishery may have an indirect effect on fecundity or survival, or there may have been a change in carrying capacity of the ecosystem for this species (Archer et al., 2004; Gerrodette and Forcada, 2005; Wade et al., 2007; Perrin, 2009). Nevertheless, the proposed authorized take of a single pantropical spotted dolphin over five years—which could occur to either the northeastern offshore or coastal stocks, or the non-depleted western and southern offshore stock— represents a negligible impact to any of these stocks, even when considered in context with incidental take in international commercial fisheries (the total taking, which is known only approximately, would likely be around one percent of the total abundance). The taking proposed here represents an insignificant incremental increase over any incidental take occurring in commercial fisheries. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the planned mitigation measures, we find that the total marine mammal take from SWFSC’s fisheries research activities will have a negligible impact on the affected marine mammal species or stocks in the Eastern Tropical Pacific. In summary, this finding of negligible impact is founded on the following factors: (1) The possibility of injury, serious injury, or mortality from the use of active acoustic devices may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment from the use of active acoustic devices consist of, at worst, temporary and relatively minor modifications in behavior; (3) the VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 predicted number of incidents of combined Level A harassment, serious injury, and mortality are at insignificant levels relative to all affected stocks; (4) the predicted number of incidents of both Level B harassment and potential M/SI likely represent overestimates; and (5) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In addition, no M/SI is proposed for authorization for any species or stock that is listed under the ESA. In combination, we believe that these factors demonstrate that the specified activity will have only short-term effects on individuals (resulting from Level B harassment) and that the total level of taking will not impact rates of recruitment or survival sufficiently to result in population-level impacts. Antarctic Marine Living Resources Ecosystem—Please refer to Table 11 for information relating to this analysis. No take by Level A harassment, serious injury, or mortality is proposed for authorization in the AMLR. The entirety of the qualitative discussion provided above for the California Current Ecosystem is applicable to SWFSC use of active acoustic sources in the AMLR, and is not repeated here. Given the limited spatio-temporal footprint of SWFSC survey activity in the Antarctic—survey activity only occurs within a limited area of Antarctic waters and only for a few months in any given year—we believe that the level of taking by Level B harassment proposed for authorization represents a negligible impact to these 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 planned mitigation measures, we find that the total marine mammal take from SWFSC’s fisheries research activities will have a negligible impact on the affected marine mammal species or stocks in the Antarctic Marine Living Resources Ecosystem. In summary, this finding of negligible impact is founded on the following factors: (1) The possibility of injury, serious injury, or mortality from the use of active acoustic devices may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment from the use of active acoustic devices consist of, at worst, temporary and relatively minor modifications in behavior; (3) no incidental take by Level A harassment, serious injury, or mortality is proposed; (4) the predicted number of incidents of Level B harassment likely represent PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 overestimates; and (5) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In combination, we believe that these factors demonstrate that the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. Small Numbers Analyses California Current Ecosystem—Please see Table 9 for information relating to this small numbers analysis. The total amount of taking proposed for authorization is less than ten percent for all stocks, with the exception of certain species-wide totals when evaluated against the stock with the smallest abundance. The total taking for killer whales represents approximately fifteen percent of the southern resident stock; however, given the limited range of this stock relative to SWFSC survey operations, it is extremely unlikely that all takes would accrue to that stock. The total taking represents less than ten percent of the population abundance for other stocks of killer whale. The total species-wide taking by Level B harassment for harbor porpoise represents approximately 23 percent of the Morro Bay stock of harbor porpoise, which has the smallest population abundance of five harbor porpoise stocks in the CCE. Although this value is within the bounds of takings that NMFS has considered to be small in the past, it is likely that the taking will be distributed in some fashion across the five stocks; and therefore, the amount of take occurring for any one stock would be much less than 23 percent. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks in the California Current Ecosystem. Eastern Tropical Pacific—Please refer to Table 10 for information relating to this analysis. The total amount of taking proposed for authorization is less than three percent for all stocks. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation measures, we find that small numbers of marine mammals E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 will be taken relative to the populations of the affected species or stocks in the Eastern Tropical Pacific. Antarctic Marine Living Resources Ecosystem—Please refer to Table 11 for information relating to this analysis. The total amount of taking proposed for authorization is less than three percent for all stocks. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks in the Antarctic Marine Living Resources Ecosystem. Monitoring and Reporting In order to issue an incidental take authorization for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth ‘‘requirements pertaining to the monitoring and reporting of such taking.’’ The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Any monitoring requirement we prescribe should improve our understanding of one or more of the following: • Occurrence of marine mammal species in action area (e.g., presence, abundance, distribution, density). • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving, or feeding areas). • Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological). • How anticipated responses to stressors impact either: (1) long-term fitness and survival of an individual; or (2) population, species, or stock. • Effects on marine mammal habitat and resultant impacts to marine mammals. VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 • Mitigation and monitoring effectiveness. SWFSC plans to make more systematic its training, operations, data collection, animal handling and sampling protocols, etc. in order to improve its ability to understand how mitigation measures influence interaction rates and ensure its research operations are conducted in an informed manner and consistent with lessons learned from those with experience operating these gears in close proximity to marine mammals. It is in this spirit that the monitoring requirements described below were crafted. Visual Monitoring Marine mammal watches are a standard part of conducting fisheries research activities, and are implemented as described previously in ‘‘Mitigation’’. Dedicated marine mammal visual monitoring occurs as described (1) for a minimum of thirty minutes prior to deployment of midwater trawl and pelagic longline gear; (2) throughout deployment and active fishing of all research gears; (3) for a minimum of thirty minutes prior to retrieval of pelagic longline gear; and (4) throughout retrieval of all research gear. This visual monitoring is performed by trained SWFSC personnel with no other responsibilities during the monitoring period. Observers record the species and estimated number of animals present and their behaviors, which may be valuable information towards an understanding of whether certain species may be attracted to vessels or certain survey gears. Separately, marine mammal watches are conducted by watch-standers (those navigating the vessel and other crew; these will typically not be SWFSC personnel) at all times when the vessel is being operated. The primary focus for this type of watch is to avoid striking marine mammals and to generally avoid navigational hazards. These watch-standers typically have other duties associated with navigation and other vessel operations and are not required to record or report to the scientific party data on marine mammal sightings, except when gear is being deployed or retrieved. In the Antarctic only, the SWFSC will monitor any potential disturbance of pinnipeds on ice, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance will be recorded according to the three-point scale, representing increasing seal response to disturbance, shown in Table 7. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 59001 Marine Mammal Excluder Device The SWFSC plans to evaluate development of an MMED suitable for use in the modified-Cobb midwater trawl. Modified-Cobb trawl nets are considerably smaller than Nordic 264 trawl nets, are fished at slower speeds, and have a different shape and functionality than the Nordic 264. Due to the smaller size of the modified-Cobb net, this gear does not yet have a suitable marine mammal excluder device but research and design work are currently being performed to develop effective excluders that will not appreciably affect the catchability of the net and therefore maintain continuity of the fisheries research dataset. A reduction in target catch rates is an issue that has arisen from preliminary analyses of MMED use in Nordic 264 gear. Although sample sizes are small, these results have cast some doubt as to whether the MMED would be suitable for surveys with a primary objective of estimating abundance, as opposed to collecting biological samples. If data collected during testing of the modifiedCobb MMED continues to indicate reduced catch rates, SWFSC would continue testing to explore whether it is possible to calculate reliable conversion factors to equate catches when using the MMED to catches when it was not. If this is not possible, then use of the MMED for certain surveys may compromise primary research objectives. Therefore, use of the MMED may be considered not practicable Analysis of Bycatch Patterns In addition, SWFSC plans to explore patterns in past marine mammal bycatch in its fisheries research surveys to better understand what factors (e.g., oceanographic conditions) might increase the likelihood of take. SWFSC staff have been using predictive machine-learning methods (classification trees) for various applications; using similar methods, the SWFSC plans to examine research trawl data for any link between trawl variables and observed marine mammal bycatch. Some of the variables SWFSC is currently considering for this analysis are: moon phase, sky cover, pinger presence, trawl speed, vessel sonar use during trawl, use of deck lights, etc. SWFSC staff will also review historical fisheries research data to determine whether sufficient data exist for similar analysis. If take patterns emerge, the SWFSC will focus future research on reducing or eliminating high-risk factors in ways that enable scientifically important surveys to continue with minimized environmental impact. E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 59002 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations Training SWFSC anticipates that additional information on practices to avoid marine mammal interactions can be gleaned from training sessions and more systematic data collection standards. The SWFSC will conduct annual trainings 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, recording of count and disturbance observations (relevant to AMLR surveys), completion of datasheets, and use of equipment. Some of these topics may be familiar to SWFSC staff, who may be professional biologists; the SWFSC shall determine the agenda for these trainings and ensure that all relevant staff have necessary familiarity with these topics. The first training, to be conducted in 2015, will include three primary elements. First, the course will provide an overview of the purpose and need for the authorization, including research gears that have historically resulted in incidental capture of protected species, mandatory mitigation measures by gear and the purpose for each, and species that SWFSC is authorized to incidentally take. Second, the training will provide detailed descriptions of reporting, data collection, and sampling protocols. This portion of the training will include instruction on how to complete new data collection forms such as the marine mammal watch log, the incidental take form (e.g., specific gear configuration and details relevant to an interaction with protected species), and forms used for species ID and biological sampling. The biological data collection and sampling training module will include the same sampling and necropsy training that is used for the West Coast Regional Observer training. SWFSC will also dedicate a portion of training to discussion of best professional judgment (which is recognized as an integral component of mitigation implementation; see ‘‘Mitigation’’), including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful. We recognize that many factors come into play regarding decision-making at sea and that it is not practicable to simplify what are inherently variable and complex situational decisions into rules that may VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 be defined on paper. However, it is our intent that use of best professional judgment be an iterative process from year to year, in which any at-sea decision-maker (i.e., responsible for decisions regarding the avoidance of marine mammal interactions with survey gear through the application of best professional judgment) learns from the prior experience of all relevant SWFSC personnel (rather than from solely their own experience). The outcome should be increased transparency in decision-making processes where best professional judgment is appropriate and, to the extent possible, some degree of standardization across common situations, with an ultimate goal of reducing marine mammal interactions. It is the responsibility of the SWFSC to facilitate such exchange. Handling Procedures and Data Collection Improved standardization of handling procedures were discussed previously in ‘‘Mitigation’’. In addition to the benefits implementing these protocols are believed to have on the animals through increased post-release survival, SWFSC believes adopting these protocols for data collection will also increase the information on which ‘‘serious injury’’ determinations (NMFS, 2012a, b) are based and improve scientific knowledge about marine mammals that interact with fisheries research gears and the factors that contribute to these interactions. SWFSC personnel will be provided standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water and log activities pertaining to the interaction. SWFSC will record interaction information on either existing data forms created by other NMFS programs (e.g., see Appendix B.2 of SWFSC’s application) or will develop their own standardized forms. To aid in serious injury determinations and comply with the current NMFS Serious Injury Guidelines (NMFS, 2012a, b), researchers will also answer a series of supplemental questions on the details of marine mammal interactions (see Appendix B.3 of SWFSC’s application). Finally, for any marine mammals that are killed during fisheries research activities, scientists will collect data and samples pursuant to the SWFSC MMPA and ESA research and salvage permit and to the ‘‘Detailed Sampling Protocol for Marine Mammal and Sea Turtle PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 Incidental Takes on SWFSC Research Cruises’’ (see Appendix B.4 of SWFSC’s application). Reporting As is normally the case, SWFSC will coordinate with the relevant stranding coordinators for any unusual marine mammal behavior and any stranding, beached live/dead, or floating marine mammals that are encountered during field research activities. The SWFSC will follow a phased approach with regard to the cessation of its activities and/or reporting of such events, as described in the proposed regulatory texts following this preamble. In addition, Chief Scientists (or cruise leader, CS) will provide reports to SWFSC leadership and to the Office of Protected Resources (OPR). As a result, when marine mammals interact with survey gear, whether killed or released alive, a report provided by the CS will fully describe any observations of the animals, the context (vessel and conditions), decisions made and rationale for decisions made in vessel and gear handling. The circumstances of these events are critical in enabling SWFSC and OPR to better evaluate the conditions under which takes are most likely occur. We believe in the long term this will allow the avoidance of these types of events in the future. The SWFSC will submit annual summary reports to OPR including: (1) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant (see ‘‘Estimated Take by Acoustic Harassment’’ for further discussion), specific to each region; (2) summary information regarding use of all longline (including bottom and vertical lines) and trawl (including bottom trawl) gear, including number of sets, hook hours, tows, etc., specific to each region and gear; (3) accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why; (4) summary information related to any on-ice disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to the three-point scale shown in Table 7, and distance of closest approach; (5) a written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; and (6) updates as appropriate regarding the development/ implementation of MMEDs and analysis E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 of bycatch patterns. The period of reporting will be annually, beginning one year post-issuance, and the report must be submitted not less than ninety days following the end of a given year. Submission of this information is in service of an adaptive management framework allowing NMFS to make appropriate modifications to mitigation and/or monitoring strategies, as necessary, during the five-year period of validity for these regulations. NMFS has established a formal incidental take reporting system, the Protected Species Incidental Take (PSIT) database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to NMFS leadership and other relevant staff, alerting them to the event and to the fact that updated information describing the circumstances of the event has been inputted to the database. The PSIT and CS reports represent not only valuable real-time reporting and information dissemination tools, but also serve as an archive of information that may be mined in the future to study why takes occur by species, gear, region, etc. SWFSC will also collect and report all necessary data, to the extent practicable given the primacy of human safety and the well-being of captured or entangled marine mammals, to facilitate serious injury (SI) determinations for marine mammals that are released alive. SWFSC will require that the CS complete data forms (already developed and used by commercial fisheries observer programs) and address supplemental questions, both of which have been developed to aid in SI determinations. SWFSC understands the critical need to provide as much relevant information as possible about marine mammal interactions to inform decisions regarding SI determinations. In addition, the SWFSC will perform all necessary reporting to ensure that any incidental M/SI is incorporated as appropriate into relevant SARs. Adaptive Management The final regulations governing the take of marine mammals incidental to SWFSC fisheries research survey operations in three specified geographical regions contain an adaptive management component. The inclusion of an adaptive management component is valuable and necessary within the context of five-year regulations for activities that have been associated with marine mammal mortality. The reporting requirements associated with these rules are designed to provide VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 OPR with monitoring data from the previous year to allow consideration of whether any changes are appropriate. OPR and the SWFSC will meet annually to discuss the monitoring reports and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows OPR to consider new information from different sources to determine (with input from the SWFSC regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable. The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs. Changes to the Proposed Regulations As a result of clarifying discussions with SWFSC, we made certain changes to the proposed regulations as described here. These changes are considered minor and do not affect any of our preliminary determinations. Specified Geographical Region We clarify that the California Current Ecosystem specified geographical region extends outside of the U.S. Exclusive Economic Zone (EEZ), from the Mexican EEZ (not including Mexican territorial waters) north into the Canadian EEZ (not including Canadian territorial waters). We further clarify that the Eastern Tropical Pacific specified geographical region extends into the EEZs of the various ETP nations (not including the territorial waters of ETP nations). The MMPA’s authority does not extend into foreign territorial waters. Mitigation We have eliminated reference to specific operational protocols (e.g., tow distance, soak duration; 219.5(b)(6)) in the regulations. Those protocols, as described in the preamble as well as in the proposed regulations, were intended to acknowledge that certain SWFSC operational protocols that are defined elements of survey design (i.e., not PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 59003 specified for purposes of mitigation) have the added benefit of reducing the likelihood of marine mammal interactions (e.g., limiting tow or soak durations results in a shorter period of time when gear is in the water). However, it is not our intent to restrict SWFSC ability to design new or alter existing survey protocols during the period of validity of these regulations. Monitoring We have removed the requirement to log passive acoustic data prior to midwater trawling in the California Current (219.6(b) in the proposed regulations). Inclusion of this requirement stemmed from a misunderstanding of certain language in SWFSC’s request for authorization and would require substantial effort for uncertain benefit. In addition, we made the following minor changes: • Added a stipulation relating to coordination of training efforts with NMFS’ Northwest Fisheries Science Center (219.6 (d)(3)) • Removed requirement for SWFSC to submit reports for each survey leg or cruise (previously 219.6(g)(2)). We believe that the incident-specific NMFS PSIT reporting in concert with required annual reporting is sufficient. • Clarified that SWFSC must submit a revised annual report following resolution of any comments on the draft report; changed the reporting period to one-year period rather than calendar year; clarified that pro-rated estimates of actual take relating to use of active acoustic sources must be submitted; and added requirements to report on waiver of move-on rule due to presence of five or fewer California sea lions when there is a relevant interaction, the ongoing practice of spent bait discard, and annual trainings and coordination. • Requirements relating to reporting of injured or dead marine mammals have been revised to clarify that SWFSC may make an immediate decision regarding continuation of research activity in the event that such activity results in a prohibited take. The decision will be subject to concurrence from OPR. Impact on Availability of Affected Species for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by these actions, in any of the three specified geographical regions for which we are issuing regulations. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. E:\FR\FM\30SER2.SGM 30SER2 59004 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations Endangered Species Act (ESA) There are multiple marine mammal species listed under the ESA with confirmed or possible occurrence in the specified geographical regions. The authorization of incidental take pursuant to the SWFSC’s specified activity would not affect any designated critical habitat. OPR requested initiation of consultation with NMFS’ West Coast Regional Office (WCRO) under section 7 of the ESA on the promulgation of fiveyear regulations and the subsequent issuance of LOAs to SWFSC under section 101(a)(5)(A) of the MMPA. On August 31, 2015, the WCRO issued a biological opinion to OPR and to the SWFSC (concerning the conduct of the specified activities) which concluded that the issuance of the authorizations is not likely to jeopardize the continued existence of any listed species and is not likely to adversely affect any listed marine mammal species. The opinion also concluded that the issuance of the authorizations would not affect any designated critical habitat. National Environmental Policy Act (NEPA) mstockstill on DSK4VPTVN1PROD with RULES2 In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as implemented by the regulations published by the Council on Environmental Quality (40 CFR parts 1500–1508), SWFSC prepared an Environmental Assessment (EA) to consider the direct, indirect and cumulative effects to the human environment resulting from the described research activities. OPR made SWFSC’s EA available to the public for review and comment, in relation to its suitability for adoption by OPR in order to assess the impacts to the human environment of issuance of regulations and subsequent Letters of Authorization to SWFSC. Also in compliance with NEPA and the CEQ regulations, as well as NOAA Administrative Order 216–6, OPR has reviewed SWFSC’s EA, determined it to be sufficient, and adopted that EA and signed a Finding of No Significant Impact (FONSI) on August 31, 2015. SWFSC’s EA and OPR’s FONSI for this action may be found on the Internet at www.nmfs.noaa.gov/pr/permits/ incidental/research.htm. Classification It has been determined that this rule is not significant under Executive Order 12866. Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. No comments were received regarding the economic impact of this final rule. As a result, a final regulatory flexibility analysis is not required and one was not prepared. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection-of-information displays a currently valid OMB control number. This rule contains collection-ofinformation requirements subject to the requirements of the PRA. These collection-of-information requirements have been approved by OMB under control number 0648–0151 and include applications for regulations, subsequent LOAs, and reports. List of Subjects in 50 CFR Part 219 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: September 22, 2015. 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 Chapter II, Subchapter C, by adding part 219 to read as follows: PART 219—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS Subpart A—Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research in the California Current Sec. 219.1 Specified activity and specified geographical region. 219.2 Effective dates. 219.3 Permissible methods of taking. 219.4 Prohibitions. 219.5 Mitigation requirements. 219.6 Requirements for monitoring and reporting. 219.7 Letters of Authorization. 219.8 Renewals and modifications of Letters of Authorization. 219.9 [Reserved] 219.10 [Reserved] PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 Subpart B—Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research in the Eastern Tropical Pacific Sec. 219.11 Specified activity and specified geographical region. 219.12 Effective dates. 219.13 Permissible methods of taking. 219.14 Prohibitions. 219.15 Mitigation requirements. 219.16 Requirements for monitoring and reporting. 219.17 Letters of Authorization. 219.18 Renewals and modifications of Letters of Authorization. 219.19 [Reserved] 219.20 [Reserved] Subpart C—Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research in the Antarctic Sec. 219.21 Specified activity and specified geographical region. 219.22 Effective dates. 219.23 Permissible methods of taking. 219.24 Prohibitions. 219.25 Mitigation requirements. 219.26 Requirements for monitoring and reporting. 219.27 Letters of Authorization. 219.28 Renewals and modifications of Letters of Authorization. 219.29 [Reserved] 219.30 [Reserved] Authority: 16 U.S.C. 1361 et seq. Subpart A—Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research in the California Current § 219.1 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the National Marine Fisheries Service’s (NMFS) Southwest Fisheries Science Center (SWFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations. (b) The taking of marine mammals by SWFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the California Current Ecosystem. § 219.2 Effective dates. Regulations in this subpart are effective October 30, 2015, through October 30, 2020. § 219.3 Permissible methods of taking. (a) Under LOAs issued pursuant to § 216.106 and § 219.7 of this chapter, the Holder of the LOA (hereinafter ‘‘SWFSC’’) may incidentally, but not intentionally, take marine mammals within the area described in § 219.1(b) E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. (b) The incidental take of marine mammals under the activities identified in § 219.1(a) of this chapter is limited to the indicated number of takes on an annual basis (by Level B harassment) or over the five-year period of validity of these regulations (by mortality) of the following species: (1) Level B harassment: (i) Cetaceans: (A) Gray whale (Eschrichtius robustus)—346; (B) Humpback whale (Megaptera novaeangliae)—14; (C) Minke whale (Balaenoptera acutorostrata)—13; (D) Sei whale (Balaenoptera borealis)—1; (E) Fin whale (Balaenoptera physalus)—33; (F) Blue whale (Balaenoptera musculus)—24; (G) Sperm whale (Physeter macrocephalus)—65; (H) Pygmy or dwarf sperm whale (Kogia spp.)—42; (I) Cuvier’s beaked whale (Ziphius cavirostris)—146; (J) Baird’s beaked whale (Berardius bairdii)—34; (K) Hubbs’, Blainville’s, ginkgotoothed, Perrin’s, lesser, or Stejneger’s beaked whales (Mesoplodon spp.)—40; (L) Bottlenose dolphin (Tursiops truncatus)—32; (M) Striped dolphin (Stenella coeruleoalba)—301; (N) Long-beaked common dolphin (Delphinis capensis)—348; (O) Short-beaked common dolphin (Delphinis delphis)—5,592; (P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)—378; (Q) Northern right whale dolphin (Lissodelphis borealis)—176; (R) Risso’s dolphin (Grampus griseus)—188; (S) Killer whale (Orcinus orca)—13; (T) Short-finned pilot whale (Globicephala macrorhynchus)—12; (U) Harbor porpoise (Phocoena phocoena)—682; and (V) Dall’s porpoise (Phocoenoides dalli)—1,365. (ii) Pinnipeds: (A) Guadalupe fur seal (Arctocephalus philippii townsendi)—134; (B) Northern fur seal (Callorhinus ursinus), California stock—236; (C) Northern fur seal, Pribilof Islands/ Eastern Pacific stock—11,555; (D) California sea lion (Zalophus californianus)—4,302; (E) Steller sea lion (Eumetopias jubatus)—1,055; VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 (F) Harbor seal (Phoca vitulina)—910; and (G) Northern elephant seal (Mirounga angustirostris)—4,743. (2) Mortality (midwater trawl gear only): (i) Cetaceans: (A) Bottlenose dolphin (California, Oregon, and Washington offshore stock)—8; (B) Bottlenose dolphin (California coastal stock)—3; (C) Striped dolphin—11; (D) Long-beaked common dolphin— 11; (E) Short-beaked common dolphin— 11; (F) Pacific white-sided dolphin—35; (G) Northern right whale dolphin—10; (H) Risso’s dolphin—11; (I) Harbor porpoise—5; (J) Dall’s porpoise—5; (K) Unidentified cetacean (Family Delphinidae or Family Phocoenidae)— 1. (ii) Pinnipeds: (A) Northern fur seal—5; (B) California sea lion—20; (C) Steller sea lion—9; (D) Harbor seal—9; (E) Northern elephant seal—5; and (F) Unidentified pinniped—1. (3) Mortality (pelagic longline gear only): (i) Cetaceans: (A) Pygmy or dwarf sperm whale—1; (B) Bottlenose dolphin—1; (C) Striped dolphin—1; (D) Long-beaked common dolphin—1; (E) Short-beaked common dolphin—1; (F) Risso’s dolphin—1; and (G) Short-finned pilot whale—1. (ii) Pinnipeds: (A) California sea lion—5; (B) Steller sea lion—1; and (C) Unidentified pinniped—1. § 219.4 Prohibitions. Notwithstanding takings contemplated in § 219.1 of this chapter and authorized by a LOA issued under §§ 216.106 and 219.7 of this chapter, no person in connection with the activities described in § 219.1 of this chapter may: (a) Take any marine mammal not specified in § 219.3(b) of this chapter; (b) Take any marine mammal specified in § 219.3(b) of this chapter in any manner other than as specified; (c) Take a marine mammal specified in § 219.3(b) of this chapter if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; (d) Take a marine mammal specified in § 219.3(b) of this chapter if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 59005 (e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 and 219.7 of this chapter. § 219.5 Mitigation requirements. When conducting the activities identified in § 219.1(a) of this chapter, the mitigation measures contained in any LOA issued under §§ 216.106 and 219.7 of this chapter must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions: (1) SWFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration’s (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant eventcontingent decision-making processes, are clearly understood and agreed upon. (2) SWFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship’s crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. (3) SWFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented. (4) When deploying any type of sampling gear at sea, SWFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment. (5) SWFSC shall implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel. (b) Midwater trawl survey protocols: (1) SWFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station. (2) SWFSC shall initiate marine mammal watches (visual observation) no less than thirty minutes prior to sampling. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 59006 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting. (3) SWFSC shall implement the moveon rule. If one or more marine mammals are observed within 1 nm of the planned location in the thirty minutes before setting the trawl gear, SWFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within 1 nm, SWFSC may decide to move again or to skip the station. SWFSC may use best professional judgment in making this decision but may not elect to conduct midwater trawl survey activity when animals remain within the 1-nm zone. (4) SWFSC shall maintain visual monitoring effort during the entire period of time that midwater trawl gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, SWFSC shall take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision. (5) If trawling operations have been suspended because of the presence of marine mammals, SWFSC may resume trawl operations when practicable only when the animals are believed to have departed the 1 nm area. SWFSC may use best professional judgment in making this determination. (6) SWFSC shall implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval. Trawl nets must be cleaned prior to deployment. (7) SWFSC must install and use a marine mammal excluder device at all times when the Nordic 264 trawl net or other net for which the device is appropriate is used. (8) SWFSC must install and use acoustic deterrent devices whenever any midwater trawl net is used, with two to four devices placed along the footrope and/or headrope of the net. SWFSC must ensure that the devices are operating properly before deploying the net. (c) Pelagic longline survey protocols: (1) SWFSC shall deploy longline gear as soon as is practicable upon arrival at the sampling station. (2) SWFSC shall initiate marine mammal watches (visual observation) VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 no less than thirty minutes prior to both deployment and retrieval of the 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) SWFSC shall implement the moveon rule. If one or more marine mammals are observed within 1 nm of the planned location in the thirty minutes before gear deployment, SWFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within 1 nm, SWFSC may decide to move again or to skip the station. SWFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nm zone. Implementation of the move-on rule is not required upon observation of five or fewer California sea lions. (4) SWFSC shall maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SWFSC shall take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision. (5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, SWFSC may resume such operations when practicable only when the animals are believed to have departed the 1 nm area. SWFSC may use best professional judgment in making this decision. (6) SWFSC shall implement standard survey protocols, including maximum soak durations and a prohibition on chumming. § 219.6 Requirements for monitoring and reporting. (a) Visual monitoring program: (1) Dedicated marine mammal visual monitoring, conducted by trained SWFSC personnel with no other responsibilities during the monitoring period, shall occur: (i) For a minimum of thirty minutes prior to deployment of midwater trawl and pelagic longline gear; (ii) Throughout deployment of gear and active fishing of midwater trawl gear; PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 (iii) For a minimum of thirty minutes prior to retrieval of pelagic longline gear; and (iv) 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. (b) Marine mammal excluder device (MMED)—SWFSC shall conduct an evaluation of the feasibility of MMED development for the modified-Cobb midwater trawl net. (c) Analysis of bycatch patterns— SWFSC shall conduct an analysis of past bycatch patterns in order to better understand what factors might increase the likelihood of incidental take in research survey gear. This shall include an analysis of research trawl data for any link between trawl variables and observed marine mammal bycatch, as well as a review of historical fisheries research data to determine whether sufficient data exist for similar analysis. (d) Training: (1) SWFSC must conduct annual training for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. SWFSC may determine the agenda for these trainings. (2) SWFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful. (3) SWFSC shall coordinate with NMFS’ Northwest Fisheries Science Center (NWFSC) regarding surveys conducted in the California Current Ecosystem, such that training and guidance related to handling procedures and data collection is consistent. (e) Handling procedures and data collection: (1) SWFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS’ Office of Protected Resources (OPR). (2) When practicable, for any marine mammal interaction involving the release of a live animal, SWFSC shall collect necessary data to facilitate a serious injury determination. E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations (3) SWFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction. (4) SWFSC shall record such data on standardized forms, which will be subject to approval by OPR. SWFSC shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction. (f) Reporting: (1) SWFSC shall report all incidents of marine mammal interaction to NMFS’ Protected Species Incidental Take database within 48 hours of occurrence, and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling. (2) Annual reporting: (i) SWFSC shall submit an annual summary report to OPR not later than ninety days following the end of a given year. SWFSC shall provide a final report within thirty days following resolution of comments on the draft report. (ii) These reports shall contain, at minimum, the following: (A) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant and associated pro-rated estimates of actual take; (B) Summary information regarding use of all longline (including bottom and vertical lines) and trawl (including bottom trawl) gear, including number of sets, hook hours, tows, etc., specific to each gear; (C) Accounts of all incidents of marine mammal interactions, including circumstances of the event, descriptions of any mitigation procedures implemented or not implemented and why, and, for interactions due to use of pelagic longline, whether the move-on rule was waived due to the presence of five or fewer California sea lions; (D) A written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any, and an assessment of the practice of discarding VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 spent bait relative to interactions with pelagic longline, if any; (E) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; (F) Updates as appropriate regarding the development/implementation of MMEDs and analysis of bycatch patterns; and (G) A summary of all relevant training provided by SWFSC and any coordination with NWFSC or NMFS’ West Coast Regional Office. (g) Reporting of injured or dead marine mammals: (1) In the unanticipated event that the activity defined in § 219.1(a) of this chapter clearly causes the take of a marine mammal in a prohibited manner, SWFSC 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 SWFSC Director (or designee). The incident must be reported immediately to OPR and the West Coast Regional Stranding Coordinator, NMFS. OPR will review the circumstances of the prohibited take and work with SWFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by SWFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Status of all sound source use in the 24 hours preceding the incident; (vii) Water depth; (viii) Fate of the animal(s); and (ix) Photographs or video footage of the animal(s). (2) In the event that SWFSC 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), SWFSC shall immediately report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS. The report must include the information identified in § 219.6(g)(1) of this section. Activities may continue while OPR reviews the circumstances of the PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 59007 incident. OPR will work with SWFSC to determine whether additional mitigation measures or modifications to the activities are appropriate. (3) In the event that SWFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 219.1(a) of this chapter (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), SWFSC shall report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. SWFSC shall provide photographs or video footage or other documentation of the stranded animal sighting to OPR. § 219.7 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, SWFSC must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, SWFSC may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and obtain a modification of the LOA as described in § 219.8 of this chapter. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination. § 219.8 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 and 219.7 of this chapter for the activity identified in § 219.1(a) of this chapter 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 E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 59008 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in § 219.8(c)(1) of this chapter), 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 § 219.8(c)(1) of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 and 219.7 of this chapter for the activity identified in § 219.1(a) of this chapter may be modified by OPR under the following circumstances: (1) Adaptive Management—OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SWFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA: (A) Results from SWFSC’s monitoring from the previous year(s). (B) Results from other marine mammal and/or sound research or studies. (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies—If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.2(b) of this chapter, an LOA may be modified without prior notice or opportunity for public VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 comment. Notice would be published in the Federal Register within thirty days of the action. § 219.9 § 219.10 [Reserved] [Reserved] Subpart B—Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research in the Eastern Tropical Pacific § 219.11 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the National Marine Fisheries Service’s (NMFS) Southwest Fisheries Science Center (SWFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations. (b) The taking of marine mammals by SWFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the Eastern Tropical Pacific. § 219.12 Effective dates. Regulations in this subpart are effective October 30, 2015, through October 30, 2020. § 219.13 Permissible methods of taking. (a) Under LOAs issued pursuant to §§ 216.106 and 219.17 of this chapter, the Holder of the LOA (hereinafter ‘‘SWFSC’’) may incidentally, but not intentionally, take marine mammals within the area described in § 219.11(b) of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. (b) The incidental take of marine mammals under the activities identified in § 219.11(a) of this chapter is limited to the indicated number of takes on an annual basis (by Level B harassment) or over the five-year period of validity of these regulations (by mortality) of the following species: (1) Level B harassment: (i) Cetaceans: (A) Humpback whale (Megaptera novaeangliae)—1; (B) Bryde’s whale (Balaenoptera edeni)—4; (C) Blue whale (Balaenoptera musculus)—2; (D) Sperm whale (Physeter macrocephalus)—4; (E) Dwarf sperm whale (Kogia sima)— 14; (F) Cuvier’s beaked whale (Ziphius cavirostris)—24; (G) Longman’s beaked whale (Indopacetus pacificus)—1; PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 (H) Blainville’s, ginkgo-toothed, or lesser beaked whales (Mesoplodon spp.)—30; (I) Rough-toothed dolphin (Steno bredanensis)—45; (J) Bottlenose dolphin (Tursiops truncatus)—139; (K) Striped dolphin (Stenella coeruleoalba)—401; (L) Pantropical spotted dolphin (Stenella attenuata)—1,088; (M) Spinner dolphin (Stenella longirostris)—442; (N) Long-beaked common dolphin (Delphinis capensis)—173; (O) Short-beaked common dolphin (Delphinis delphis)—1,300; (P) Fraser’s dolphin (Lagenodelphis hosei)—121; (Q) Dusky dolphin (Lagenorhynchus obscurus)—18; (R) Risso’s dolphin (Grampus griseus)—46; (S) Melon-headed whale (Peponocephala electra)—19; (T) Pygmy killer whale (Feresa attenuata)—17; (U) False killer whale (Pseudorca crassidens)—17; (V) Killer whale (Orcinus orca)—3; and (W) Short-finned pilot whale (Globicephala macrorhynchus)—723. (ii) Pinnipeds: (A) Guadalupe fur seal (Arctocephalus philippii townsendi)—66; (B) California sea lion (Zalophus californianus)—1,442; (C) South American sea lion (Otaria byronia)—1,442; and (D) Northern elephant seal (Mirounga angustirostris)—3,248. (2) Mortality (pelagic longline gear only): (i) Cetaceans: (A) Dwarf sperm whale—1; (B) Rough-toothed dolphin—1; (C) Bottlenose dolphin—1; (D) Striped dolphin—1; (E) Pantropical spotted dolphin—1; (F) Long-beaked common dolphin—1; (G) Short-beaked common dolphin— 1; (H) Risso’s dolphin—1; (I) False killer whale—1; and (J) Short-finned pilot whale—1. (ii) Pinnipeds: (A) California sea lion—5; (B) South American sea lion—5; and (C) Unidentified pinniped—1. § 219.14 Prohibitions. Notwithstanding takings contemplated in § 219.11 of this chapter and authorized by a LOA issued under §§ 216.106 and 219.17 of this chapter, no person in connection with the activities described in § 219.11 of this chapter may: E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations (a) Take any marine mammal not specified in § 219.13(b) of this chapter; (b) Take any marine mammal specified in § 219.13(b) of this chapter in any manner other than as specified; (c) Take a marine mammal specified in § 219.13(b) of this chapter if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; (d) Take a marine mammal specified in § 219.13(b) of this chapter if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or (e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 and 219.17 of this chapter. mstockstill on DSK4VPTVN1PROD with RULES2 § 219.15 Mitigation requirements. When conducting the activities identified in § 219.11(a) of this chapter, the mitigation measures contained in any LOA issued under §§ 216.106 and 219.17 of this chapter must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions: (1) SWFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration’s (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant eventcontingent decision-making processes, are clearly understood and agreed upon. (2) SWFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship’s crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. (3) SWFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented. (4) When deploying any type of sampling gear at sea, SWFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 marine mammals during use of all research equipment. (5) SWFSC shall implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel. (b) Pelagic longline survey protocols: (1) SWFSC shall deploy longline gear as soon as is practicable upon arrival at the sampling station. (2) SWFSC shall initiate marine mammal watches (visual observation) no less than thirty minutes prior to both deployment and retrieval of the 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) SWFSC shall implement the moveon rule. If one or more marine mammals are observed within 1 nm of the planned location in the thirty minutes before gear deployment, SWFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within 1 nm, SWFSC may decide to move again or to skip the station. SWFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nm zone. (4) SWFSC shall maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SWFSC shall take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision. (5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, SWFSC may resume such operations when practicable only when the animals are believed to have departed the 1 nm area. SWFSC may use best professional judgment in making this determination. (6) SWFSC shall implement standard survey protocols, including maximum soak durations and a prohibition on chumming. § 219.16 Requirements for monitoring and reporting. (a) Visual monitoring program: (1) Dedicated marine mammal visual monitoring, conducted by trained SWFSC personnel with no other PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 59009 responsibilities during the monitoring period, shall occur: (i) For a minimum of thirty minutes prior to deployment of pelagic longline gear; (ii) Throughout deployment of gear; (iii) For a minimum of thirty minutes prior to retrieval of pelagic longline gear; and (iv) 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. (b) Training: (1) SWFSC must conduct annual training for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. SWFSC may determine the agenda for these trainings. (2) SWFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful. (c) Handling procedures and data collection: (1) SWFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS’ Office of Protected Resources (OPR). (2) When practicable, for any marine mammal interaction involving the release of a live animal, SWFSC shall collect necessary data to facilitate a serious injury determination. (3) SWFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction. (4) SWFSC shall record such data on standardized forms, which will be subject to approval by OPR. SWFSC shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction. (d) Reporting: E:\FR\FM\30SER2.SGM 30SER2 mstockstill on DSK4VPTVN1PROD with RULES2 59010 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations (1) SWFSC shall report all incidents of marine mammal interaction to NMFS’ Protected Species Incidental Take database within 48 hours of occurrence, and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling. (2) Annual reporting: (i) SWFSC shall submit an annual summary report to OPR not later than ninety days following the end of a given year. SWFSC shall provide a final report within thirty days following resolution of comments on the draft report. (ii) These reports shall contain, at minimum, the following: (A) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant and associated pro-rated estimates of actual take; (B) Summary information regarding use of all longline gear, including number of sets, hook hours, etc.; (C) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why; (D) A written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; and an assessment of the practice of discarding spent bait relative to interactions with pelagic longline, if any; (E) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; and (F) A summary of all relevant training provided by SWFSC. (e) Reporting of injured or dead marine mammals: (1) In the unanticipated event that the activity defined in § 219.1(a) of this chapter clearly causes the take of a marine mammal in a prohibited manner, SWFSC 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 SWFSC Director (or designee). The incident must be reported immediately to OPR. OPR will review the circumstances of the prohibited take VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 and work with SWFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by SWFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Status of all sound source use in the 24 hours preceding the incident; (vii) Water depth; (viii) Fate of the animal(s); and (ix) Photographs or video footage of the animal(s). (2) In the event that SWFSC 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), SWFSC shall immediately report the incident to OPR. The report must include the same information identified in § 219.16(e)(1) of this section. Activities may continue while OPR reviews the circumstances of the incident. OPR will work with SWFSC to determine whether additional mitigation measures or modifications to the activities are appropriate. (3) In the event that SWFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 219.11(a) of this chapter (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), SWFSC shall report the incident to OPR within 24 hours of the discovery. SWFSC shall provide photographs or video footage or other documentation of the stranded animal sighting to OPR. § 219.17 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, SWFSC must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, SWFSC may apply for and obtain a renewal of the LOA. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and obtain a modification of the LOA as described in § 219.18 of this chapter. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination. § 219.18 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 and 219.17 of this chapter for the activity identified in § 219.11(a) of this chapter 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 § 219.18(c)(1) of this chapter), 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 § 219.18(c)(1) of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 and 219.17 of this chapter for the activity identified in § 219.11(a) of this chapter may be modified by OPR under the following circumstances: E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations (1) Adaptive Management—OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SWFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA: (A) Results from SWFSC’s monitoring from the previous year(s). (B) Results from other marine mammal and/or sound research or studies. (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies—If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.12(b) of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action. § 219.19 [Reserved] § 219.20 [Reserved] Subpart C—Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research in the Antarctic mstockstill on DSK4VPTVN1PROD with RULES2 § 219.21 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the National Marine Fisheries Service’s (NMFS) Southwest Fisheries Science Center (SWFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations. (b) The taking of marine mammals by SWFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the Antarctic Marine Living Resources Ecosystem. VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 § 219.22 Effective dates. Regulations in this subpart are effective October 30, 2015, through October 30, 2020. § 219.23 Permissible methods of taking. (a) Under LOAs issued pursuant to §§ 216.106 and 219.27 of this chapter, the Holder of the LOA (hereinafter ‘‘SWFSC’’) may incidentally, but not intentionally, take marine mammals within the area described in § 219.21(b) of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. (b) The incidental take of marine mammals under the activities identified in § 219.21(a) of this chapter is limited to the indicated number of takes on an annual basis of the following species and is limited to Level B harassment: (1) Cetaceans: (i) Southern right whale (Eubalaena australis)—1; (ii) Humpback whale (Megaptera novaeangliae)—92; (iii) Antarctic minke whale (Balaenoptera bonaerensis)—6; (iv) Fin whale (Balaenoptera physalus)—114; (v) Sperm whale (Physeter macrocephalus)—3; (vi) Arnoux’ beaked whale (Berardius arnuxii)—37; (vii) Southern bottlenose whale (Hyperoodon planifrons)—37; (viii) Hourglass dolphin (Lagenorhynchus cruciger)—12; (ix) Killer whale (Orcinus orca)—11; (x) Long-finned pilot whale (Globicephala melas)—43; and (xi) Spectacled porpoise (Phocoena dioptrica)—12. (2) Pinnipeds: (i) Antarctic fur seal (Arctocephalus philippii townsendi)—553; (ii) Southern elephant seal (Mirounga leonina)—6; (iii) Weddell seal (Leptonychotes weddellii)—4; (iv) Crabeater seal (Lobodon carcinophaga)—7; and (v) Leopard seal (Hydrurga leptonyx)—5. § 219.24 Prohibitions. Notwithstanding takings contemplated in § 219.21 of this chapter and authorized by a LOA issued under §§ 216.106 and 219.27 of this chapter, no person in connection with the activities described in § 219.21 of this chapter may: (a) Take any marine mammal not specified in § 219.23(b) of this chapter; (b) Take any marine mammal specified in § 219.23(b) of this chapter in any manner other than as specified; PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 59011 (c) Take a marine mammal specified in § 219.23(b) of this chapter if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; (d) Take a marine mammal specified in § 219.23(b) of this chapter if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or (e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 and 219.27 of this chapter. § 219.25 Mitigation requirements. When conducting the activities identified in § 219.21(a), the mitigation measures contained in any LOA issued under §§ 216.106 and 219.27 of this chapter must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions: (1) SWFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration’s (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant eventcontingent decision-making processes, are clearly understood and agreed upon. (2) SWFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship’s crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. (3) SWFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented. (4) When deploying any type of sampling gear at sea, SWFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment. (5) SWFSC shall implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel. E:\FR\FM\30SER2.SGM 30SER2 59012 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations (b) Trawl survey protocols—SWFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station. mstockstill on DSK4VPTVN1PROD with RULES2 § 219.26 Requirements for monitoring and reporting. (a) Visual monitoring program: (1) 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. (2) SWFSC shall monitor any potential disturbance of pinnipeds on ice, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance shall be recorded according to a threepoint scale representing increasing seal response to disturbance. (b) Training: (1) SWFSC must conduct annual training for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, recording of count and disturbance observations, completion of datasheets, and use of equipment. SWFSC may determine the agenda for these trainings. (2) SWFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful. (c) Handling procedures and data collection: (1) SWFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS’ Office of Protected Resources (OPR). (2) When practicable, for any marine mammal interaction involving the release of a live animal, SWFSC shall collect necessary data to facilitate a serious injury determination. (3) SWFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction. (4) SWFSC shall record such data on standardized forms, which will be subject to approval by OPR. SWFSC VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction. (d) Reporting: (1) SWFSC shall report all incidents of marine mammal interaction to NMFS’ Protected Species Incidental Take database within 48 hours of occurrence, and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling. (2) Annual reporting: (i) SWFSC shall submit an annual summary report to OPR not later than ninety days following the end of a given year. SWFSC shall provide a final report within thirty days following resolution of comments on the draft report. (ii) These reports shall contain, at minimum, the following: (A) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant and associated pro-rated estimates of actual take; (B) Summary information regarding use of all trawl gear, including number of tows, etc.; (C) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why; (D) Summary information related to any on-ice disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to a three-point scale of response severity (1 = alert; 2 = movement; 3 = flight), and distance of closest approach; (E) A written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; (F) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; and (G) A summary of all relevant training provided by SWFSC. (e) Reporting of injured or dead marine mammals: (1) In the unanticipated event that the activity defined in § 219.1(a) of this chapter clearly causes the take of a PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 marine mammal in a prohibited manner, SWFSC 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 SWFSC Director (or designee). The incident must be reported immediately to OPR. OPR will review the circumstances of the prohibited take and work with SWFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by SWFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Status of all sound source use in the 24 hours preceding the incident; (vii) Water depth; (viii) Fate of the animal(s); and (ix) Photographs or video footage of the animal(s). (2) In the event that SWFSC 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), SWFSC shall immediately report the incident to OPR. The report must include the same information identified in § 219.26(e)(1) of this section. Activities may continue while OPR reviews the circumstances of the incident. OPR will work with SWFSC to determine whether additional mitigation measures or modifications to the activities are appropriate. (3) In the event that SWFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 219.21(a) of this chapter (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), SWFSC shall report the incident to OPR within 24 hours of the discovery. SWFSC shall provide photographs or video footage or other documentation of the stranded animal sighting to OPR. E:\FR\FM\30SER2.SGM 30SER2 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations § 219.27 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, SWFSC must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, SWFSC may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and obtain a modification of the LOA as described in § 219.28 of this chapter. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination. § 219.28 Renewals and modifications of Letters of Authorization. mstockstill on DSK4VPTVN1PROD with RULES2 (a) An LOA issued under §§ 216.106 and 219.27 of this chapter for the VerDate Sep<11>2014 19:57 Sep 29, 2015 Jkt 235001 activity identified in § 219.21(a) of this chapter 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 § 219.28(c)(1) of this chapter), 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 § 219.28(c)(1) of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 and 219.27 of this chapter for the activity identified in § 219.21(a) of this chapter may be modified by OPR under the following circumstances: (1) Adaptive Management—OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SWFSC PO 00000 Frm 00033 Fmt 4701 Sfmt 9990 59013 regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA: (A) Results from SWFSC’s monitoring from the previous year(s). (B) Results from other marine mammal and/or sound research or studies. (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies—If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.22(b) of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action. § 219.29 [Reserved] § 219.30 [Reserved] [FR Doc. 2015–24639 Filed 9–29–15; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\30SER2.SGM 30SER2

Agencies

[Federal Register Volume 80, Number 189 (Wednesday, September 30, 2015)]
[Rules and Regulations]
[Pages 58981-59013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24639]



[[Page 58981]]

Vol. 80

Wednesday,

No. 189

September 30, 2015

Part V





Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 219





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

Federal Register / Vol. 80 , No. 189 / Wednesday, September 30, 2015 
/ Rules and Regulations

[[Page 58982]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 120416011-5836-02]
RIN 0648-BB87


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

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

ACTION: Final rule.

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SUMMARY: NMFS' Office of Protected Resources, upon request of NMFS' 
Southwest Fisheries Science Center (SWFSC), hereby issues regulations 
to govern the unintentional taking of marine mammals incidental to 
fisheries research conducted in multiple specified geographical 
regions, over the course of 5 years. These regulations, which allow for 
the issuance of Letters of Authorization for the incidental take of 
marine mammals during the described activities and specified 
timeframes, prescribe the permissible methods of taking and other means 
of effecting the least practicable adverse impact on marine mammal 
species or stocks and their habitat, as well as requirements pertaining 
to the monitoring and reporting of such taking.

DATES: Effective from October 30, 2015, through October 30, 2020.

ADDRESSES: A copy of SWFSC's application and supporting documents, as 
well as a list of the references cited in this document, may be 
obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In case of problems accessing these documents, 
please call the contact listed above (see FOR FURTHER INFORMATION 
CONTACT).

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

SUPPLEMENTARY INFORMATION: 

Executive Summary

    These regulations, under the Marine Mammal Protection Act (16 
U.S.C. 1361 et seq.), establish frameworks for authorizing the take of 
marine mammals incidental to the SWFSC's fisheries research activities 
in three separate specified geographical regions (i.e., the California 
Current Ecosystem, the Eastern Tropical Pacific, and the Antarctic 
Marine Living Resources Ecosystem).
    The SWFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. SWFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. A few 
surveys are conducted onboard commercial fishing vessels, but the SWFSC 
designs and executes the studies and funds vessel time.

Purpose and Need for This Regulatory Action

    We received an application from the SWFSC requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. Take is anticipated to occur by Level B harassment incidental 
to the use of active acoustic devices in each of the three specified 
geographical regions, as well as by visual disturbance of pinnipeds in 
the Antarctic only, and by Level A harassment, serious injury, or 
mortality incidental to the use of fisheries research gear in the 
California Current and Eastern Tropical Pacific only. For each 
specified geographical region, the regulations are valid for five years 
from the date of issuance. Please see ``Background'' below for 
definitions of harassment.
    Section 101(a)(5)(A) of the MMPA 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 if, after notice and public comment, the agency 
makes certain findings and issues regulations. These regulations would 
contain mitigation, monitoring, and reporting requirements.

Legal Authority for the Regulatory Action

    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 the 
five-year regulations and any subsequent Letters of Authorization.

Summary of Major Provisions Within the Regulations

    The following provides a summary of some of the major provisions 
within these regulations for the SWFSC fisheries research activities in 
the three specified geographical regions. We have determined that the 
SWFSC's adherence to the mitigation, monitoring, and reporting measures 
listed below would achieve the least practicable adverse impact on the 
affected marine mammals. They include:
     Required monitoring of the sampling areas to detect the 
presence of marine mammals before deployment of pelagic trawl nets or 
pelagic longline gear.
     Required use of marine mammal excluder devices on one type 
of pelagic trawl net and required use of acoustic deterrent devices on 
all pelagic trawl nets.
     Required implementation of the mitigation strategy known 
as the move-on rule, which incorporates best professional judgment, 
when necessary during pelagic trawl and pelagic longline operations.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].

[[Page 58983]]

Summary of Request

    On April 25, 2013, we received an adequate and complete request 
from SWFSC for authorization to take marine mammals incidental to 
fisheries research activities. We received an initial draft of the 
request on February 11, 2012, followed by revised drafts on June 29 and 
December 21, 2012. On May 2, 2013 (78 FR 25703), we published a notice 
of receipt of SWFSC's application in the Federal Register, requesting 
comments and information related to the SWFSC request for thirty days. 
We received comments from the Marine Mammal Commission, which we 
considered in development of the notice of proposed rulemaking (80 FR 
8166; February 13, 2015) and which are available on the Internet at: 
www.nmfs.noaa.gov/pr/permits/incidental/research.htm.
    SWFSC plans to conduct fisheries research using pelagic trawl gear 
used at various levels in the water column, pelagic longlines with 
multiple hooks, bottom-contact trawls, and other gear. If a marine 
mammal interacts with gear deployed by SWFSC, the outcome could 
potentially be Level A harassment, serious injury (i.e., any injury 
that will likely result in mortality), or mortality. However, there is 
not sufficient information upon which to base a prediction of what the 
outcome may be for any particular interaction. Therefore, SWFSC has 
pooled the estimated number of incidents of take resulting from gear 
interactions, and we have assessed the potential impacts accordingly. 
SWFSC also uses various active acoustic devices in the conduct of 
fisheries research, and use of these devices has the potential to 
result in Level B harassment of marine mammals. Level B harassment of 
pinnipeds hauled out on ice may also occur, in the Antarctic only, as a 
result of visual disturbance from vessels conducting SWFSC research. 
These regulations are valid for five years from the date of issuance.
    The SWFSC conducts fisheries research surveys in the California 
Current Ecosystem (CCE), the Eastern Tropical Pacific (ETP), and the 
Antarctic Marine Living Resources Ecosystem (AMLR). As required by the 
MMPA, SWFSC's request is considered separately for each specified 
geographical region. In the CCE, SWFSC requests authorization to take 
individuals of seventeen species by Level A harassment, serious injury, 
or mortality (hereafter referred to as M/SI + Level A) and of 34 
species by Level B harassment. In the ETP, SWFSC requests authorization 
to take individuals of eleven species by M/SI + Level A and of 31 
species by Level B harassment. In the AMLR, SWFSC requests 
authorization to take individuals of seventeen species by Level B 
harassment. No takes by M/SI + Level A are anticipated in the AMLR.

Description of the Specified Activity

Overview

    The SWFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. SWFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. A few 
surveys are conducted onboard commercial fishing vessels, but the SWFSC 
designs and executes the studies and funds vessel time. The SWFSC plans 
to administer and conduct approximately fourteen survey programs over 
the five-year period. The gear types used fall into several categories: 
pelagic trawl gear used at various levels in the water column, pelagic 
longlines, bottom-contact trawls, and other gear. Only use of pelagic 
trawl and pelagic longline gears are likely to result in interaction 
with marine mammals. The majority of these surveys also use active 
acoustic devices.
    The federal government has a responsibility to conserve and protect 
living marine resources in U.S. waters and has also entered into a 
number of international agreements and treaties related to the 
management of living marine resources in international waters outside 
the United States. NOAA has the primary responsibility for managing 
marine fin and shellfish species and their habitats, with that 
responsibility delegated within NOAA to NMFS.
    In order to direct and coordinate the collection of scientific 
information needed to make informed fishery management decisions, 
Congress created six Regional Fisheries Science Centers, each a 
distinct organizational entity and the scientific focal point within 
NMFS for region-based federal fisheries-related research. This research 
is aimed at monitoring fish stock recruitment, abundance, survival and 
biological rates, geographic distribution of species and stocks, 
ecosystem process changes, and marine ecological research. The SWFSC is 
the research arm of NMFS in the southwest region of the U.S. The SWFSC 
conducts research and provides scientific advice to manage fisheries 
and conserve protected species in the three geographic research areas 
described below and provides scientific information to support the 
Pacific Fishery Management Council and numerous other domestic and 
international fisheries management organizations.

Dates and Duration

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

Specified Geographical Regions

    The SWFSC operates within three research areas: the California 
Current, Eastern Tropical Pacific, and Antarctic. These three areas 
were described in detail in our notice of proposed rulemaking (80 FR 
8166; February 13, 2015); please see that document for further detail.

Detailed Description of Activities

    A detailed description of SWFSC's planned activities was provided 
in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) 
and is not repeated here. No changes have been made to the specified 
activities described therein.

Comments and Responses

    We published a notice of proposed rulemaking in the Federal 
Register on February 13, 2015 (80 FR 8166) and requested comments and 
information from the public. During the thirty-day comment period, we 
received letters from the Marine Mammal Commission (Commission) and 
jointly from The Humane Society of the United States and Whale and 
Dolphin Conservation (HSUS). The comments and our responses are 
provided here, and the comments have been posted on the Internet at: 
www.nmfs.noaa.gov/pr/permits/incidental/research.htm. Please

[[Page 58984]]

see the comment letters for full rationale behind the recommendations 
we respond to below.
    Comment 1: The Commission recommends that we require SWFSC to 
estimate the numbers of marine mammals taken by Level B harassment 
incidental to use of active acoustic sources (e.g., echosounders) based 
on the 120-dB rather than the 160-dB root mean square (rms) threshold. 
Please see our notice of proposed rulemaking (80 FR 8166; February 13, 
2015) for discussion related to acoustic terminology and thresholds. 
The Commission made the same recommendation in their letter submitted 
during the 2013 notice of receipt comment period. HSUS reviewed that 
letter and indicated that they agree and support the Commission's 
recommendation. The Commission had also previously recommended that we 
consult with experts in the fields of sound propagation and marine 
mammal hearing to revise existing acoustic criteria and thresholds as 
necessary to specify threshold levels that would be more appropriate 
for a wider range of sound sources.
    Response: Continuous sounds are those whose sound pressure level 
remains above that of the ambient sound, with negligibly small 
fluctuations in level (NIOSH, 1998; ANSI, 2005), while intermittent 
sounds are defined as sounds with interrupted levels of low or no sound 
(NIOSH, 1998). Thus, echosounder signals are not continuous sounds but 
rather intermittent sounds. Intermittent sounds can further be defined 
as either impulsive or non-impulsive. Impulsive sounds have been 
defined as sounds which are typically transient, brief (< 1 sec), 
broadband, and consist of a high peak pressure with rapid rise time and 
rapid decay (ANSI, 1986; NIOSH, 1998). Echosounder signals also have 
durations that are typically very brief (< 1 sec), with temporal 
characteristics that more closely resemble those of impulsive sounds 
than non-impulsive sounds, which typically have more gradual rise times 
and longer decays (ANSI, 1995; NIOSH, 1998). With regard to behavioral 
thresholds, we consider the temporal and spectral characteristics of 
echosounder signals to more closely resemble those of an impulse sound 
than a continuous sound.
    The Commission suggests that, for certain sources considered here, 
the interval between pulses would not be discernible to the animal, 
rendering them effectively continuous. However, echosounder pulses are 
emitted in a similar fashion as odontocete echolocation click trains. 
Research indicates that marine mammals, in general, have extremely fine 
auditory temporal resolution and can detect each signal separately 
(e.g., Au et al., 1988; Dolphin et al., 1995; Supin and Popov, 1995; 
Mooney et al., 2009), especially for species with echolocation 
capabilities. Therefore, it is highly unlikely that marine mammals 
would perceive echosounder signals as being continuous. The Commission 
provides numerous references purporting to demonstrate behavioral 
responses by marine mammals to received levels of sound below 160 dB 
rms from sources with characteristics similar to those used by SWFSC. 
However, the vast majority of these references concern acoustic 
deterrent devices, which we do not believe are similar to SWFSC 
acoustic sources.
    In conclusion, echosounder signals are intermittent rather than 
continuous signals, and the fine temporal resolution of the marine 
mammal auditory system allows them to perceive these sounds as such. 
Further, the physical characteristics of these signals indicate a 
greater similarity to the way that intermittent, impulsive sounds are 
received. Therefore, the 160-dB threshold (typically associated with 
impulsive sources) is more appropriate than the 120-dB threshold 
(typically associated with continuous sources) for estimating takes by 
behavioral harassment incidental to use of such sources. This response 
represents the consensus opinion of acoustics experts from NMFS' Office 
of Protected Resources and Office of Science and Technology.
    Finally, we agree with the Commission's recommendation to revise 
existing acoustic criteria and thresholds as necessary to specify 
threshold levels that would be more appropriate for a wider range of 
sound sources and are currently in the process of producing such 
revisions. NOAA recognizes, as new science becomes available, that our 
current categorizations (i.e., impulse versus continuous) may not fully 
encompass the complexity associated with behavioral responses (e.g., 
context) and are working toward addressing these issues in future 
acoustic guidance.
    Comment 2: The Commission recommends that we develop criteria and 
guidance for determining when prospective applicants should request 
taking by Level B harassment incidental to the use of echosounders, 
sonars, and subbottom profilers, stating that we should follow a 
consistent approach in assessing the potential for taking from such 
active acoustic systems.
    Response: We agree with the Commission's recommendation. Generally 
speaking, there has been a lack of information and scientific consensus 
regarding the potential effects of scientific sonars on marine mammals, 
which may differ depending on the system and species in question as 
well as the environment in which the system is operated. We are 
currently working to ensure that the use of these types of active 
acoustic sources is considered consistently and look forward to the 
Commission's advice as we develop guidance as recommended.
    Comment 3: The Commission notes that we have delineated two 
categories of acoustic sources, largely based on frequency, with those 
sources operating at frequencies greater than the known hearing ranges 
of any marine mammal (i.e., >180 kHz) lacking the potential to cause 
disruption of behavioral patterns. The Commission recommends that we 
review the recent scientific literature on acoustic sources with 
frequencies above 180 kHz (i.e., Deng et al., 2014; Hastie et al., 
2014) and incorporate those findings into our criteria and guidance for 
determining when prospective applicants should request authorization 
for taking by Level B harassment from the use of echosounders, sonars, 
and subbottom profilers.
    Response: We are aware of the referenced literature but did not 
acknowledge and address those findings in our notice of proposed 
rulemaking. We appreciate the Commission bringing it to our attention. 
In general, the referenced work indicates that ``sub-harmonics'' could 
be ``detectable'' by certain species at distances up to several hundred 
meters. However, this detectability is in reference to ambient noise, 
not to NMFS' established 160-dB threshold for assessing the potential 
for incidental take for these sources (see also our response to comment 
#1). Source levels of the secondary peaks considered in these studies--
those within the hearing range of some marine mammals--range from 135-
166 dB, meaning that these sub-harmonics would either be below the 
threshold for behavioral harassment or would attenuate to such a level 
within a few meters. Beyond these important study details, these high-
frequency (i.e., Category 1) sources and any energy they may produce 
below the primary frequency that could be audible to marine mammals 
would be dominated by a few primary sources (e.g., EK60) that are 
operated near-continuously--much like other Category 2 sources 
considered in our assessment of potential incidental take from SWFSC 
use of active acoustic sources--and the

[[Page 58985]]

potential range above threshold would be so small as to essentially 
discount them.
    Comment 4: HSUS expressed concern that we may not be appropriately 
accounting for behavioral impacts incidental to SWFSC use of active 
acoustic sources and noted that such impacts could occur at greater 
distances than considered in our analysis.
    Response: Beyond consideration of a different threshold for 
assessing potential behavioral impacts--which we address above for 
comment #1--it is not clear what additional or different approaches to 
impact assessment HSUS might recommend. HSUS states that NMFS' current 
relevant acoustic threshold (i.e., 160 dB rms) is the level at which 
temporary threshold shift is predicted to occur and does not account 
for behavioral effects. This statement is inaccurate--while we 
acknowledge that behavioral effects can and have been documented to 
occur at received levels below 160 dB rms, depending on behavioral 
context, the current step-function paradigm espoused by NMFS provides 
that behavioral reactions that may be considered as ``take'' under the 
MMPA occur upon exposure to any received level at or exceeding 160 dB 
rms. Under the same paradigm, the onset of temporary threshold shift is 
considered to occur upon receipt of any sound level between 160 dB rms 
and either 180 or 190 dB rms, for cetaceans and pinnipeds, 
respectively. Absent a specific recommendation to consider, we believe 
that our approach to assessing the potential for behavioral harassment 
incidental to SWFSC use of active acoustics is appropriate.
    Comment 5: SWFSC proposed to implement a move-on rule, under which 
they suspend operations or hauling of gear when marine mammals are 
observed within a certain distance of the vessel. This measure is 
intended to reduce the potential for marine mammal interactions. One 
exception to this measure is for California sea lions, for which 
density is sufficiently high in typical operation areas in the 
California Current that SWFSC believes implementation of the move-on 
rule should only be triggered upon observation of more than five sea 
lions. HSUS states that the basis for determining a numerical threshold 
for balancing risk to the affected species and practicability for 
operations (i.e., six sea lions) is not sufficiently explained.
    Response: We have determined that implementation of the move-on 
rule, in concert with other measures described below under 
``Mitigation'', is sufficient to reduce the amount of incidental taking 
to the level of least practicable adverse impact, as required by the 
MMPA. However, for California sea lions, there is a tension between the 
numbers of individuals observed in many sampling locations versus the 
amount of historical interactions with SWFSC longline research gear, 
i.e., historical interactions are rare (seven individual sea lions 
incidentally captured in nine years) while sightings of California sea 
lions within 1 nm of survey locations is common. Therefore, the 
expected result of an absolute move-on rule for California sea lions is 
that certain survey locations would be effectively eliminated from 
future surveys, while providing marginal benefit to the stock. It is 
possible that a move-on rule triggered upon observation of a single sea 
lion, rather than a group of six or more sea lions, may provide 
additional benefit in reducing potential impacts to the stock. However, 
because these areas are important to the survey objectives (e.g., 
sampling target species) developed in accordance with NMFS' statutory 
mandates and because implementation of the more restrictive version of 
the measure for California sea lions is not necessary to reach a 
finding of negligible impact for California sea lions, we have 
determined that the measure as described satisfies the standard of 
least practicable adverse impact. The specific numerical threshold--six 
or more California sea lions--was based on SWFSC expert knowledge 
concerning the numbers of California sea lions typically observed in 
proximity to sampling locations. We will assess this measure on an 
annual basis during the lifetime of the regulations and would modify 
the measure through adaptive management should we determine that a more 
restrictive measure is required to meet the MMPA standard of least 
practicable adverse impact.
    Comment 6: SWFSC proposed to prohibit the practice of chumming in 
order to prevent attractance of marine mammals to longline operations 
but would allow the practice of discarding spent bait during survey 
operations. HSUS believes that there is little difference between these 
two practices and indicates concern that discards of spent bait, in 
combination with increased densities of sea lions, may result in 
potential for increased interactions with survey gear. HSUS recommends 
that we require that bait be retained until all hooks are clear of the 
water.
    Response: While we acknowledge that any differentiation between 
discarding spent bait and chumming may be perceived as a matter of 
semantics, a substantive distinction is that chumming is an intentional 
act to lure or attract animals, whereas SWFSC performs bait discard to 
increase survey efficiency. Interactions with marine mammals during 
longline surveys have historically been limited to rare incidents 
involving no more than a single individual California sea lion in any 
set. There is no information to suggest that this ongoing practice has 
resulted in any increase in the overall number of interactions, while 
it has demonstrably not resulted in an increase in the number of 
animals per interaction. Therefore, we have determined that a 
prohibition on bait discards is not necessary to reduce the anticipated 
taking to the level of least practicable adverse impact. However, we 
will assess the potential inclusion of such a measure on an annual 
basis during the lifetime of the regulations and will require it 
through adaptive management should we determine it necessary to satisfy 
the statutory requirement.

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, ``and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for subsistence uses.'' We provided a full description of the 
planned mitigation measures, including background discussion related to 
certain elements of the mitigation plan, in our notice of proposed 
rulemaking (80 FR 8166; February 13, 2015). Please see that document 
for more detail.

General Measures

    Coordination and communication--We require that the SWFSC take all 
necessary measures to coordinate and communicate in advance of each 
specific survey with NOAA's Office of Marine and Aviation Operations 
(OMAO), or other relevant parties, to ensure that all mitigation 
measures and monitoring requirements described herein, as well as the 
specific manner of implementation and relevant event-contingent 
decision-making processes, are clearly understood and agreed-upon. This 
may involve description of all required measures when submitting cruise 
instructions to OMAO or when completing contracts with external 
entities. SWFSC will coordinate and conduct briefings at the outset of 
each

[[Page 58986]]

survey and as necessary between ship's crew (commanding officer/master 
or designee(s), as appropriate) and scientific party in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures. The chief scientist 
(CS) will be responsible for coordination with the Officer on Deck 
(OOD; or equivalent on non-NOAA platforms) to ensure that requirements, 
procedures, and decision-making processes are understood and properly 
implemented.
    Vessel speed--Vessel speed during active sampling rarely exceeds 5 
kn, with typical speeds being 2-4 kn. Transit speeds vary from 6-14 kn 
but average 10 kn. These low vessel speeds minimize the potential for 
ship strike. At any time during a survey or in transit, if a crew 
member standing watch or dedicated marine mammal observer sights marine 
mammals that may intersect with the vessel course that individual will 
immediately communicate the presence of marine mammals to the bridge 
for appropriate course alteration or speed reduction, as possible, to 
avoid incidental collisions.
    Other gears--The SWFSC deploys a wide variety of gear to sample the 
marine environment during all of their research cruises. Many of these 
types of gear (e.g., plankton nets, video camera and ROV deployments) 
are not considered to pose any risk to marine mammals and are therefore 
not subject to specific mitigation measures. In addition, specific 
aspects of gear design, survey protocols (e.g., number of hooks), and 
frequency of use indicate that certain types of gears that may 
otherwise be expected to have the potential to result in take of marine 
mammals (e.g., bottom longline used in sablefish life history surveys) 
do not pose significant risk to marine mammals and are not subject to 
specific mitigation measures. However, at all times when the SWFSC is 
conducting survey operations at sea, the OOD and/or CS and crew will 
monitor for any unusual circumstances that may arise at a sampling site 
and use best professional judgment to avoid any potential risks to 
marine mammals during use of all research equipment.
    Handling procedures--Since the time the notice of proposed 
rulemaking was published, SWFSC developed marine mammal handling 
protocols for use in its fisheries and ecosystem research activities 
that rely on gears that may interact with these species. These 
protocols draw heavily from existing fisheries observer program 
placards, training materials and manuals, particularly those using 
trawl and longline gears. The SWFSC handling protocols follow a step-
wise order: (1) Take actions to ensure the health and safety of crew 
and scientists on board; (2) depending how and where the animal is 
hooked or entangled, take specific actions to prevent further injury to 
the animal; (3) take actions to increase the animal's chances of 
survival, and (4) record detailed information on the interaction, 
actions taken and observations of the animal throughout the incident. 
SWFSC views formalizing this data collection as a key component to 
evaluating how actual handling compares to handling protocols, and to 
learning from these incidents both through analysis of interaction 
reports and through discussions at its annual training sessions.

Trawl Survey Visual Monitoring and Operational Protocols

    The mitigation requirements described here are applicable to all 
midwater trawl operations conducted by the SWFSC (currently conducted 
using the Nordic 264 and modified-Cobb nets). Marine mammal watches 
(visual observation) will be initiated no less than thirty minutes 
prior to arrival on station to determine if marine mammals are in the 
vicinity of the planned sample location. Marine mammal watches will be 
conducted by scanning the surrounding waters with the naked eye and 
rangefinding binoculars (or monocular). During nighttime operations, 
visual observation will be conducted using the naked eye and available 
vessel lighting. The visual observation period typically occurs during 
transit leading up to arrival at the sampling station, rather than upon 
arrival on station. However, in some cases it may be necessary to 
conduct a bongo plankton tow or other small net cast prior to deploying 
trawl gear. In these cases, the visual watch will continue until trawl 
gear is ready to be deployed. Aside from this required thirty-minute 
minimum pre-trawl monitoring period, the OOD/CS and crew standing watch 
will visually scan for marine mammals during all daytime operations.
    The primary purpose of conducting the pre-trawl visual monitoring 
period is to implement the move-on rule. If marine mammals are sighted 
within 1 nm of the planned set location in the thirty minutes before 
setting the trawl gear, the vessel will transit to a different section 
of the sampling area to maintain a minimum set distance of 1 nm from 
the observed marine mammals. If, after moving on, marine mammals remain 
within the 1 nm exclusion zone, the CS or watch leader may decide to 
move again or to skip the station. However, the effectiveness of visual 
monitoring may be limited depending on weather and lighting conditions, 
and it may not always be possible to conduct visual observations out to 
1 nm radial distance. The OOD, CS or watch leader will determine the 
best strategy to avoid potential takes of marine mammals based on the 
species encountered and their numbers and behavior, position, and 
vector relative to the vessel, as well as any other factors. In any 
case, no trawl gear will be deployed if marine mammals have been 
sighted within 1 nm of the planned set location during the thirty-
minute watch period.
    In general, trawl operations will be conducted immediately upon 
arrival on station (and on conclusion of the thirty-minute pre-watch 
period) in order to minimize the time during which marine mammals 
(particularly pinnipeds) may become attracted to the vessel. However, 
in some cases it will be necessary to conduct small net tows (e.g., 
bongo net) prior to deploying trawl gear in order to avoid trawling 
through extremely high densities of gelatinous zooplankton that can 
damage trawl gear.
    Once the trawl net is in the water, the OOD, CS, and/or crew 
standing watch will continue to visually monitor the surrounding waters 
and will maintain a lookout for marine mammal presence as far away as 
environmental conditions allow. If marine mammals are sighted before 
the gear is fully retrieved, the most appropriate response to avoid 
marine mammal interaction will be determined by the professional 
judgment of the CS, watch leader, OOD and other experienced crew as 
necessary. This judgment will be based on past experience operating 
trawl gears around marine mammals (i.e., best professional judgment) 
and on SWFSC training sessions that will facilitate dissemination of 
expertise operating in these situations (e.g., factors that contribute 
to marine mammal gear interactions and those that aid in successfully 
avoiding such events). Best professional judgment takes into 
consideration the species, numbers, and behavior of the animals, the 
status of the trawl net operation (e.g., net opening, depth, and 
distance from the stern), the time it would take to retrieve the net, 
and safety considerations for changing speed or course. We recognize 
that it is not possible to dictate in advance the exact course of 
action that the OOD or CS should take in any given event involving the 
presence of marine mammals in proximity to an ongoing trawl tow, given 
the sheer number of potential variables, combinations of

[[Page 58987]]

variables that may determine the appropriate course of action, and the 
need to consider human safety in the operation of fishing gear at sea. 
Nevertheless, we require a full accounting of factors that shape both 
successful and unsuccessful decisions and these details will be fed 
back into SWFSC training efforts and ultimately help to refine the best 
professional judgment that determines the course of action taken in any 
given scenario (see further discussion in ``Monitoring and 
Reporting'').
    If trawling operations have been suspended because of the presence 
of marine mammals, the vessel will resume trawl operations (when 
practicable) only when the animals are believed to have departed the 1 
nm exclusion zone. This decision is at the discretion of the OOD/CS and 
is dependent on the situation.
    Standard survey protocols that are expected to lessen the 
likelihood of marine mammal interactions include standardized tow 
durations and distances. Standard tow durations of not more than thirty 
minutes at the target depth will be implemented, excluding deployment 
and retrieval time (which may require an additional thirty minutes, 
depending on target depth), to reduce the likelihood of attracting and 
incidentally taking marine mammals. Short tow durations decrease the 
opportunity for marine mammals to find the vessel and investigate. 
Trawl tow distances will be less than 3 nm--typically 1-2 nm, depending 
on the specific survey and trawl speed--which is expected to reduce the 
likelihood of attracting and incidentally taking marine mammals. In 
addition, care will be taken when emptying the trawl to avoid damage to 
marine mammals that may be caught in the gear but are not visible upon 
retrieval. The gear will be emptied as quickly as possible after 
retrieval in order to determine whether or not marine mammals are 
present. The vessel's crew will clean trawl nets prior to deployment to 
remove prey items that might attract marine mammals. Catch volumes are 
typically small with every attempt made to collect all organisms caught 
in the trawl.
    Marine mammal excluder devices--Excluder devices are specialized 
modifications, typically used in trawl nets, which are designed to 
reduce bycatch by allowing non-target taxa to escape the net. These 
devices generally consist of a grid of bars fitted into the net that 
allow target species to pass through the bars into the codend while 
larger, unwanted taxa (e.g., turtles, sharks, mammals) strike the bars 
and are ejected through an opening in the net. Marine mammal excluder 
devices (MMED) have not been proven to be fully effective at preventing 
marine mammal capture in trawl nets (e.g., Chilvers, 2008) and are not 
expected to prevent marine mammal capture in SWFSC trawl surveys. It is 
difficult to effectively test such devices, in terms of effectiveness 
in excluding marine mammals as opposed to effects on target species 
catchability, because realistic field trials would necessarily involve 
marine mammal interactions with trawl nets. Use of artificial 
surrogates in field trials has not been shown to be a realistic 
substitute (Gibson and Isakssen, 1998). Nevertheless, we believe it 
reasonable to assume that use of MMEDs may reduce the likelihood of a 
given marine mammal interaction with trawl gear resulting in mortality. 
We do not infer causality, but note that annual marine mammal 
interactions with the Nordic 264 trawl net have been much reduced 
(relative to 2008) since use of the MMED began. For full details of 
design and testing of the SWFSC MMED designed for the Nordic 264 net, 
please see Dotson et al. (2010).
    Two types of nets are used in SWFSC pelagic trawl surveys: The 
Nordic 264 and the modified-Cobb midwater trawls. All Nordic 264 trawl 
nets will be fitted with MMEDs specially designed to allow marine 
mammals caught during trawling operations an opportunity to escape. 
Modified-Cobb trawl nets are considerably smaller than Nordic 264 trawl 
nets (80 m\2\ versus 380 m\2\ net opening), are fished at slower 
speeds, and have a different shape and functionality than the Nordic 
264. Very few marine mammal interactions with SWFSC pelagic trawl gear 
have involved the modified-Cobb net (five of thirty total incidents 
from 2006-14). Due to the smaller size and different functionality of 
the modified-Cobb, there is no suitable MMED yet available. However, 
the SWFSC plans to perform research and design work to develop an 
effective excluder, if possible, which will not appreciably affect the 
catchability of the net and therefore maintain continuity of the 
fisheries research dataset. Please see ``Monitoring and Reporting'' for 
additional discussion.
    Acoustic deterrent devices--Acoustic deterrent devices (pingers) 
are underwater sound-emitting devices that have been shown to decrease 
the probability of interactions with certain species of marine mammals 
when fishing gear is fitted with the devices. Pingers will be deployed 
during all pelagic trawl operations and on all types of midwater trawl 
nets (i.e., the Nordic 264 and modified-Cobb nets), with two to four 
pingers placed along the footrope and/or headrope. The vessel's crew 
will ensure that pingers are operational prior to deployment. Pingers 
are manufactured by STM Products (Model DDD-03H), with the following 
attributes: (1) Operational depth of 10-200 m; (2) tones range from 100 
ms to seconds in duration; (3) variable frequency of 5-500 kHz; and (4) 
maximum source level of 176 dB rms re 1 [mu]Pa at 30-80 kHz.
    AMLR bottom trawl surveys--The SWFSC has no documented interactions 
with marine mammals in bottom trawl gear used periodically in the AMLR, 
and standard trawl protocols described above are not required for these 
surveys. However, SWFSC staff conduct visual and acoustic surveys prior 
to deploying bottom trawl gear to assess the bathymetry and whether 
marine mammals are present in the area. These visual and acoustic 
surveys have resulted in very few detections of marine mammals during 
trawling operations. Visual and acoustic monitoring will continue as a 
regular part of future bottom trawl surveys in the AMLR study area, and 
if detections increase, indicating a higher potential for marine mammal 
interactions, we will consider the need to implement the standard trawl 
protocols described above during AMLR bottom trawl surveys.

Longline Survey Visual Monitoring and Operational Protocols

    Visual monitoring requirements for all pelagic longline surveys are 
the same as those described above for trawl surveys. Please see that 
section for full details of the visual monitoring and move-on 
protocols. These protocols are not required for bottom longline or 
vertical longline operations, as there have been no documented marine 
mammal interactions for SWFSC use of these gears and because we believe 
there is very little risk of interaction even without these measures. 
In summary, requirements for pelagic longline surveys are to: (1) 
Conduct visual monitoring for a period not less than thirty minutes 
prior to arrival on station; (2) implement the move-on rule if marine 
mammals are observed within a 1-nm exclusion zone around the vessel; 
(3) deploy gear as soon as possible upon arrival on station (contingent 
on clearance of the exclusion zone); and (4) maintain visual monitoring 
effort throughout deployment and retrieval of the longline gear. As was 
described for trawl gear, the OOD, CS, or watch leader will use best 
professional judgment to minimize the risk to marine mammals from 
potential gear interactions during

[[Page 58988]]

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 1-nm exclusion zone. If marine mammals 
are detected during retrieval operations and are considered to be at 
risk, haul-back may be postponed. These decisions are at the discretion 
of the OOD/CS and are dependent on the situation.
    There is one exception to these requirements for longline gear. If 
five or fewer California sea lions are sighted within the 1-nm 
exclusion zone during the thirty-minute pre-clearance period, longline 
gear may be deployed (observations of more than five California sea 
lions would trigger the move-on rule or suspension of gear deployment 
or retrieval, as appropriate and, for the latter, as indicated by best 
professional judgment).
    As for trawl surveys, some standard survey protocols are expected 
to minimize the potential for marine mammal interactions. Typical soak 
times are two to four hours, measured from the time the last hook is in 
the water to when the first hook is brought out of the water (but may 
be as long as eight hours when targeting swordfish). SWFSC longline 
protocols specifically prohibit chumming (releasing additional bait to 
attract target species to the gear). However, spent bait may be 
discarded during gear retrieval while gear is still in the water. 
However, if marine mammal interactions with longline gear increase or 
if SWFSC staff observe that this practice may contribute to increased 
potential for interactions, we will consider the need to retain spent 
bait until all gear is retrieved.
    We have carefully evaluated the SWFSC's planned mitigation measures 
and considered a range of other measures in the context of ensuring 
that we prescribe the means of effecting the least practicable adverse 
impact on the affected marine mammal species and stocks and their 
habitat. Our evaluation of potential measures included consideration of 
the following factors in relation to one another: (1) The manner in 
which, and the degree to which, the successful implementation of the 
measure is expected to minimize adverse impacts to marine mammals, (2) 
the proven or likely efficacy of the specific measure to minimize 
adverse impacts as planned; and (3) the practicability of the measure 
for applicant implementation.
    Any mitigation measure(s) we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time.
    (6) For monitoring directly related to mitigation, an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the SWFSC's proposed measures, as well 
as other measures we considered, we have determined that these 
mitigation measures provide the means of effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Description of Marine Mammals in the Area of the Specified Activity

    We previously reviewed SWFSC's species descriptions--which 
summarize available information regarding status and trends, 
distribution and habitat preferences, behavior and life history, and 
auditory capabilities of the potentially affected species--for accuracy 
and completeness and referred readers to Sections 3 and 4 of SWFSC's 
application, as well as to NMFS' Stock Assessment Reports (SARs; 
www.nmfs.noaa.gov/pr/sars/). We also provided information related to 
all species with expected potential for occurrence in the specified 
geographical regions where SWFSC plans to conduct the specified 
activities, summarizing information related to the population or stock, 
including potential biological removal (PBR). Please see Tables 3-5 in 
our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for 
that information, which is not reprinted here.

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

    We provided a summary and discussion of the ways that components of 
the specified activity may impact marine mammals and their habitat in 
our notice of proposed rulemaking (80 FR 8166; February 13, 2015). 
Specifically, we considered potential effects to marine mammals from 
ship strike, physical interaction with various gear types, use of 
active acoustic sources, and visual disturbance of pinnipeds, as well 
as effects to prey species and to acoustic habitat. The information is 
not reprinted here.

Estimated Take by Incidental Harassment, Serious Injury, or Mortality

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. Serious injury means any injury that 
will likely result in mortality (50 CFR 216.3).
    Take of marine mammals incidental to SWFSC research activities are 
anticipated to occur as a result of (1) injury or mortality due to gear 
interaction (CCE and ETP only; 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 on ice resulting from close proximity of 
research vessels (AMLR only; Level B harassment only).

[[Page 58989]]

Estimated Take Due to Gear Interaction

    In order to estimate the number of potential incidents of take that 
could occur by M/SI + Level A through gear interaction, we first 
considered SWFSC's record of past such incidents, and then considered 
in addition other species that may have similar vulnerabilities to 
SWFSC midwater trawl and pelagic longline gear as those species for 
which we have historical interaction records. Historical interactions 
with SWFSC research gear, which have only occurred in the California 
Current Ecosystem, were described in Tables 10 and 11 of our notice of 
proposed rulemaking (80 FR 8166; February 13, 2015). Please see that 
document for more information. In order to produce the most 
precautionary take estimates possible, we use here the most recent five 
years of data that includes 2008 (e.g., 2008-12). As previously noted, 
there were dramatically more of both interactions and animals captured 
(41 animals captured in fourteen interactions across both longline and 
trawl gear) in the year 2008 than in any other year (an average of 4.3 
animals captured in 2.8 interactions in all other years). We believe a 
five-year time frame provides enough data to adequately capture year-
to-year variation in take levels, while reflecting recent environmental 
conditions and survey protocols that may change over time.
    The SWFSC has no recorded interactions with any gear other than 
midwater trawl and pelagic longline. We do not anticipate any future 
interactions in any other gears, including the bottom trawl gear 
periodically employed by the SWFSC in the AMLR. Although some 
historical interactions resulted in the animal(s) being released alive, 
no serious injury determinations (NMFS, 2012a; 2012b) were made, and it 
is possible that some of these animals later died. In order to use 
these historical interaction records in a precautionary manner as the 
basis for the take estimation process, and because we have no specific 
information to indicate whether any given future interaction might 
result in M/SI versus Level A harassment, we conservatively assume that 
all interactions equate to mortality.
    In order to evaluate the potential vulnerability of additional 
species to midwater trawl and pelagic longline gear, we consulted NMFS' 
List of Fisheries (LOF), which classifies U.S. commercial fisheries 
into one of three categories according to the level of incidental 
marine mammal M/SI that is known to occur on an annual basis over the 
most recent five-year period (generally) for which data has been 
analyzed. We provided this information, as presented in the 2014 LOF 
(79 FR 14418; April 14, 2014), in Table 13 of our notice of proposed 
rulemaking (80 FR 8166; February 13, 2015) and do not reproduce it 
here.
    California Current Ecosystem--In order to estimate the potential 
number of incidents of M/SI + Level A that could occur incidental to 
the SWFSC's use of midwater trawl and pelagic longline gear in the CCE 
over the five-year period from 2015-19, we first look at the four 
species described that have been taken historically and then evaluate 
the potential vulnerability of additional species to these gears. Table 
1 shows the five-year annual average captures of these four species and 
the projected five-year totals for this proposed rule, for both trawl 
and longline gear. In order to produce precautionary estimates, we 
calculate the annual average for the designated five-year period (2008-
12), round up to the nearest whole number, and assume that this number 
may be taken in each future year. This is precautionary in part because 
we include 2008 in the five-year average, which skews the data for all 
species captured in trawl gear (though not for longline). These 
estimates are based on the assumption that annual effort (e.g., total 
annual trawl tow time) over the proposed five-year authorization period 
will not exceed the annual effort during the period 2008-12.

                       Table 1--Annual Average Captures (2008-12) and Projected Five-Year Total for Historically Captured Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Projected  5-
                   Gear                              Species             2008    2009    2010    2011    2012    Maximum for   Average per   year total
                                                                                                                 any set \1\      year           \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Trawl....................................  Pacific white-sided dolphin      15       3       3       7       4            11           6.4            35
                                           California sea lion........      15       1       0       1       0             9           3.4            20
                                           Northern right whale              6       0       0       0       0             6           1.2            10
                                            dolphin.
                                           Northern fur seal..........       3       0       0       0       0             1           0.6             5
Longline.................................  California sea lion........       2       1       1       0       1             1             1             5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The maximum number of individual animals captured in a single trawl tow or longline set, 2008-12.
\2\ The estimated total is the product of the 2008-12 annual average rounded up to the nearest whole number and multiplied by the five-year timespan of
  the proposed rule.

    In order to estimate a number of individuals that could potentially 
be captured in SWFSC research gear for those species not historically 
captured, we first determine which species may have vulnerability to 
capture in a given gear. As noted above, we provided information about 
commercial fisheries interactions with gear similar to that used by 
SWFSC in our notice of proposed rulemaking (80 FR 8166; February 13, 
2015). Where there are documented incidents of M/SI incidental to 
relevant commercial fisheries, we noted whether we believe those 
incidents provide sufficient basis upon which to infer vulnerability to 
capture in SWFSC research gear.
    Information related to incidental M/SI in relevant commercial 
fisheries is not, however, the sole determinant of whether it may be 
appropriate to authorize M/SI + Level A incidental to SWFSC survey 
operations. A number of factors (e.g., species-specific knowledge 
regarding animal behavior, overall abundance in the geographic region, 
density relative to SWFSC survey effort, feeding ecology, propensity to 
travel in groups commonly associated with other species historically 
taken) were taken into account to determine whether a species may have 
a similar vulnerability to certain types of gear as historically taken 
species. In some cases, we have determined that species without 
documented M/SI may nevertheless be vulnerable to capture in SWFSC 
research gear. Similarly, we have determined that some species groups 
with documented M/SI are not likely to be vulnerable to capture in 
SWFSC gear. These decisions were described in detail in our notice of 
proposed rulemaking and no new information has been presented. 
Determinations regarding species that may be vulnerable to

[[Page 58990]]

capture in SWFSC research gear have not changed.
    Of the species determined to be vulnerable to capture in a given 
gear, we then determine which may have a similar propensity to capture 
in a given gear as a historically captured species (Table 1) and which 
likely do not. For the former, we assume that, given similar 
propensity, it is possible that a worst-case scenario of take in a 
single trawl tow or longline set could occur while at the same time 
contending that, absent significant range shifts or changes in habitat 
usage, capture of a species not historically captured would likely be a 
very rare event. The former assumption also accounts for the likelihood 
that, for species that often travel in groups, an incident involving 
capture of that species is likely to involve more than one individual.
    For example, we believe that the Risso's dolphin is potentially 
vulnerable to capture in midwater trawl gear and may have similar 
propensity to capture in that gear as does the Pacific white-sided 
dolphin. Because the greatest number of Pacific white-sided dolphins 
captured in any one trawl tow was eleven individuals (see Table 2), we 
assume that eleven Risso's dolphins could also be captured in a single 
incident. However, in recognition of the fact that any incident 
involving the capture of Risso's dolphins would likely be a rare event, 
we authorize a total taking over the five-year period of the number 
that may result from a single, worst-case incident (eleven dolphins). 
While we do not necessarily believe that eleven Risso's dolphins would 
be captured in a single incident--and that more capture incidents 
involving fewer individuals could occur, as opposed to a single, worst-
case incident--we believe that this is a reasonable approach to 
estimating potential incidents of M/SI + Level A while balancing what 
could happen in a worst-case scenario with the potential likelihood 
that no incidents of capture would actually occur. The historical 
capture of northern right whale dolphins in 2008 provides an 
instructive example of a situation where a worst-case scenario (six 
dolphins captured in a single trawl tow) did occur, but overall capture 
of this species was very rare (no other capture incidents before or 
since).
    Separately, for those species that we believe may have a 
vulnerability to capture in given gear but that we do not believe may 
have a similar propensity to capture in that gear as a historically 
captured species, we assume that capture would be a rare event that 
could involve multiple individuals captured in a single incident or one 
or two individuals captured in one or two incidents. For example, from 
the LOF we infer vulnerability to capture in trawl gear for the Dall's 
porpoise but do not believe that this species has a similar propensity 
for interaction in trawl gear as any historically captured species. 
Therefore, we assume that capture would represent a rare event that 
could occur in any year of the five-year period of authorization and 
may involve one or more individuals. For these species we authorize a 
total taking by M/SI + Level A of five individuals over the five-year 
timespan. These examples are provided to illustrate the process.
    It is also possible that a captured animal may not be able to be 
identified to species with certainty. Certain pinnipeds and small 
cetaceans are difficult to differentiate at sea, especially in low-
light situations or when a quick release is necessary. For example, a 
captured delphinid that is struggling in the net may escape or be freed 
before positive identification is made. Therefore, the SWFSC requested 
the authorization of incidental M/SI + Level A for two unidentified 
pinnipeds (one each in trawl and longline) and one unidentified small 
cetacean (in trawl only) over the course of the five-year period of 
authorization.
    Table 2 summarizes total estimated take due to gear interaction in 
the CCE; these estimates are unchanged from those provided in our 
notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please 
see that document for additional detail on the take estimation process 
and full rationale for determinations regarding species 
vulnerabilities.

               Table 2--Total Estimated M/SI + Level A Due to Gear Interaction in the CCE, 2015-19
----------------------------------------------------------------------------------------------------------------
                                                                Estimated  5-    Estimated  5-
                                                                 year total,      year total,     Total, trawl +
                           Species                              midwater trawl      pelagic          longline
                                                                     \1\          longline \1\
----------------------------------------------------------------------------------------------------------------
Kogia spp.\2\................................................  ...............                1                1
Bottlenose dolphin (all stocks) \3\..........................  ...............                1                1
Bottlenose dolphin (CA/OR/WA offshore) \4\...................                8  ...............                8
Bottlenose dolphin (CA coastal) \4\..........................                3  ...............                3
Striped dolphin..............................................               11                1               12
Short-beaked common dolphin..................................               11                1               12
Long-beaked common dolphin...................................               11                1               12
Pacific white-sided dolphin..................................               35  ...............               35
Northern right whale dolphin.................................               10  ...............               10
Risso's dolphin..............................................               11                1               12
Short-finned pilot whale.....................................  ...............                1                1
Harbor porpoise \4\..........................................                5  ...............                5
Dall's porpoise..............................................                5  ...............                5
Northern fur seal \5\........................................                5  ...............                5
California sea lion..........................................               20                5               25
Steller sea lion.............................................                9                1               10
Harbor seal \4\..............................................                9  ...............                9
Northern elephant seal.......................................                5  ...............                5
Unidentified pinniped........................................                1                1                2
Unidentified cetacean........................................                1  ...............                1
----------------------------------------------------------------------------------------------------------------
\1\ Please see Table 1 and preceding text for derivation of take estimates.
\2\ We expect that only one Kogia spp. may be taken over the five-year timespan and that it could be either a
  pygmy or dwarf sperm whale.
\3\ As a species believed to have similar propensity for capture in trawl gear as that demonstrated by the
  Pacific white-sided dolphin, we assume that eleven bottlenose dolphins could be captured over the five-year
  timespan. Total potential take of bottlenose dolphins in trawl gear has been apportioned by stock according to
  typical occurrence of that stock relative to SWFSC survey locations. We assume that a maximum of one total
  take of a bottlenose dolphin from either stock may occur in longline gear.
\4\ Incidental take may be of animals from any stock, excluding Washington inland waters stocks.
\5\ Incidental take may be of animals from either the eastern Pacific or California stocks.


[[Page 58991]]

    Eastern Tropical Pacific--The SWFSC does not currently conduct 
longline surveys in the ETP, but plans to over the five-year period of 
authorization. The take estimates presented here reflect that 
likelihood. Assuming that longline surveys will be conducted in the 
ETP, the SWFSC anticipates that it will deploy an equal number (or 
less) of longline sets in the ETP relative to the number of sets 
currently being deployed in the CCE. The process described above for 
the CCE was used in determining vulnerability and appropriate take 
estimates for species in the ETP. We assume that a similar level of 
interaction with pelagic longline gear as that demonstrated by the 
California sea lion in the CCE could occur in the ETP, and also assume 
that the South American sea lion may have similar propensity for 
interaction with longline gear as that demonstrated by the California 
sea lion.
    For all other species listed in Table 3, we infer vulnerability to 
pelagic longline gear in the ETP from the 2014 LOF, and assume that 
capture would likely be a rare event occurring at most once over the 
five-year period proposed for these regulations. We also authorize 
incidental M/SI + Level A for one unidentified pinniped over the course 
of the five-year period of authorization. Table 3 summarizes total 
estimated take due to gear interaction in the ETP; these estimates are 
unchanged from those provided in our notice of proposed rulemaking (80 
FR 8166; February 13, 2015). Please see that document for additional 
detail on the take estimation process and full rationale for 
determinations regarding species vulnerabilities.

 Table 3--Total Estimated M/SI + Level A Due to Gear Interaction in the
                              ETP, 2015-19
------------------------------------------------------------------------
                                               Estimated 5-year total,
                  Species                       pelagic longline \1\
------------------------------------------------------------------------
Dwarf sperm whale.........................                             1
Rough-toothed dolphin.....................                             1
Bottlenose dolphin........................                             1
Striped dolphin...........................                             1
Pantropical spotted dolphin \2\...........                             1
Short-beaked common dolphin \2\...........                             1
Long-beaked common dolphin................                             1
Risso's dolphin...........................                             1
False killer whale........................                             1
Short-finned pilot whale..................                             1
California sea lion.......................                             5
South American sea lion...................                             5
Unidentified pinniped.....................                             1
------------------------------------------------------------------------
\1\ Please see Tables 1 and preceding text for derivation of take
  estimates.
\2\ Incidental take may be of animals from any stock.

Estimated Take Due to Acoustic Harassment

    As described in our notice of proposed rulemaking (80 FR 8166; 
February 13, 2015; ``Potential Effects of the Specified Activity on 
Marine Mammals''), we believe that SWFSC use of active acoustic sources 
has, at most, the potential to cause Level B harassment of marine 
mammals. In order to attempt to quantify the potential for Level B 
harassment to occur, NMFS (including the SWFSC and acoustics experts 
from other parts of NMFS) developed an analytical framework considering 
characteristics of the active acoustic systems described in our notice 
of proposed rulemaking (80 FR 8166; February 13, 2015) under 
Description of Active Acoustic Sound Sources, their expected patterns 
of use in each of the three SWFSC operational areas, and 
characteristics of the marine mammal species that may interact with 
them. We believe that this quantitative assessment benefits from its 
simplicity and consistency with current NMFS acoustic guidance 
regarding Level B harassment but caution that, based on a number of 
deliberately precautionary assumptions, the resulting take estimates 
should be seen as a likely substantial overestimate of the potential 
for behavioral harassment to occur as a result of the operation of 
these systems.
    The assessment paradigm for active acoustic sources used in SWFSC 
fisheries research is relatively straightforward and has a number of 
key simplifying assumptions. In particular, we do not consider marine 
mammal functional hearing ranges, and it is possible that certain 
species may not hear certain signals produced through SWFSC use of 
active acoustic sources. Therefore, and due to other simplifying 
assumptions, these exposure estimates may be conservative. 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, the appropriate threshold is 160 dB re 1 [mu]Pa 
(rms). Estimating the number of exposures at the specified received 
level requires several steps:
    (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

[[Page 58992]]

foraging and transit. We described the approach used (including methods 
for estimating each of the calculations described above) and the 
assumptions made that result in conservative estimates in significant 
detail in our notice of proposed rulemaking (80 FR 8166; February 13, 
2015). There have been no changes made to the approach, the 
informational inputs, or the results. Therefore, we do not repeat the 
discussion here and refer the reader to the notice. Summaries of the 
results are provided in Tables 4-6 below.

             Table 4--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment in the CCE \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Estimated Level B       Estimated Level
                                                                  Area density       Volumetric        harassment, 0-200 m       B harassment,
                Species                   Shallow      Deep      (animals/km\2\)  density (animals/---------------------------      >200 m        Total
                                                                       \2\           km\3\) \3\                               ------------------
                                                                                                      EK60     ME70     SX90     EK60     SX90
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale............................          X   ..........       \4\ 0.01913           0.09565      100       34      212        0        0      346
Humpback whale........................          X   ..........           0.00083           0.00415        4        1        9        0        0       14
Minke whale...........................          X   ..........           0.00072           0.00360        4        1        8        0        0       13
Sei whale.............................          X   ..........           0.00009           0.00045        0        0        1        0        0        1
Fin whale.............................          X   ..........           0.00184           0.00920       10        3       20        0        0       33
Blue whale............................          X   ..........           0.00136           0.00680        7        2       15        0        0       24
Sperm whale...........................  ..........          X            0.00170           0.00340        4        1        8       41       11       65
Kogia spp.............................  ..........          X            0.00109           0.00218        2        1        5       27        7       42
Cuvier's beaked whale.................  ..........          X            0.00382           0.00764        8        3       17       93       25      146
Baird's beaked whale..................  ..........          X            0.00088           0.00176        2        1        4       21        6       34
Mesoplodont beaked whales.............  ..........          X            0.00103           0.00206        2        1        5       25        7       40
Bottlenose dolphin....................          X   ..........           0.00178           0.00890        9        3       20        0        0       32
Striped dolphin.......................          X   ..........           0.01667           0.08335       87       30      184        0        0      301
Long-beaked common dolphin............          X   ..........           0.01924           0.09620      100       35      213        0        0      348
Short-beaked common dolphin...........          X   ..........           0.30935           1.54675    1,616      555    3,421        0        0    5,592
Pacific white-sided dolphin...........          X   ..........           0.02093           0.10465      109       38      231        0        0      378
Northern right whale dolphin..........          X   ..........           0.00975           0.04875       51       17      108        0        0      176
Risso's dolphin.......................          X   ..........           0.01046           0.05230       55       19      116        0        0      188
Killer whale..........................          X   ..........           0.00071           0.00355        4        1        8        0        0       13
Short-finned pilot whale..............  ..........          X            0.00031           0.00062        1        0        1        8        2       12
Harbor porpoise.......................          X   ..........       \5\ 0.03775           0.18873      197       68      417        0        0      682
Dall's porpoise.......................          X   ..........           0.07553           0.37765      395      135      835        0        0    1,365
Guadalupe fur seal....................          X   ..........       \4\ 0.00741           0.03705       39       13       82        0        0      134
Northern fur seal.....................          X   ..........       \4\ 0.65239           1.68275    1,758      604    3,721        0        0   11,791
California sea lion...................          X   ..........       \4\ 0.29675           1.19000    1,243      427    2,632        0        0    5,363
Steller sea lion......................          X   ..........       \4\ 0.06316           0.29165      305      105      645        0        0    1,141
Harbor seal...........................          X   ..........       \4\ 0.05493           0.25200      263       90      557        0        0      993
Northern elephant seal................  ..........          X        \4\ 0.12400           0.24800      259       89      548    3,023      824    4,743
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Please see our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for full details related to elements of this table.
\2\ All density estimates from Barlow and Forney (2007) unless otherwise indicated.
\3\ Volumetric density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding
  with defined depth strata.
\4\ Density estimates derived by SWFSC from SAR abundance estimates and notional study area of 1,000,000 km\2\.
\5\ ManTech-SRS Technologies (2007) estimated a harbor porpoise density for coastal and inland waters of Washington, which is used as the best available
  proxy here. There are no known density estimates for harbor porpoises in SWFSC survey areas in the CCE.


             Table 5--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment in the ETP \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Estimated Level B       Estimated Level
                                                                  Area density       Volumetric        harassment, 0-200 m      B  harassment,
                Species                   Shallow      Deep      (animals/km\2\)       density     ---------------------------      >200 m        Total
                                                                       \2\         (animals/km\3\)                            ------------------
                                                                                         \3\          EK60     ME70     SX90     EK60     SX90
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale........................          X   ..........           0.00013           0.00067        1        0        0        0        0        1
Minke whale...........................          X   ..........       \4\ 0.00001           0.00003        0        0        0        0        0        0
Bryde's whale.........................          X   ..........           0.00049           0.00244        2        0        2        0        0        4
Sei whale.............................          X   ..........           0.00000           0.00000        0        0        0        0        0        0
Fin whale.............................          X   ..........           0.00003           0.00015        0        0        0        0        0        0
Blue whale............................          X   ..........       \4\ 0.00019           0.00097        1        0        1        0        0        2
Sperm whale...........................  ..........          X        \4\ 0.00019           0.00039        0        0        0        4        0        4

[[Page 58993]]

 
Dwarf sperm whale.....................  ..........          X        \4\ 0.00053           0.00105        1        0        1       11        1       14
Cuvier's beaked whale.................  ..........          X        \4\ 0.00094           0.00187        2        0        1       19        2       24
Longman's beaked whale................  ..........          X        \5\ 0.00004           0.00007        0        0        0        1        0        1
Mesoplodont beaked whales.............  ..........          X        \4\ 0.00119           0.00237        2        0        1       25        2       30
Rough-toothed dolphin.................          X   ..........           0.00504           0.02521       25        4       16        0        0       45
Bottlenose dolphin....................          X   ..........           0.01573           0.07864       78       13       48        0        0      139
Striped dolphin.......................          X   ..........           0.04516           0.22582      223       39      139        0        0      401
Pantropical spotted dolphin...........          X   ..........       \6\ 0.12263           0.61315      606      105      377        0        0    1,088
Spinner dolphin.......................          X   ..........       \7\ 0.04978           0.24889      246       43      153        0        0      442
Long-beaked common dolphin............          X   ..........           0.01945           0.09725       96       17       60        0        0      173
Short-beaked common dolphin...........          X   ..........       \8\ 0.14645           0.73227      723      126      451        0        0    1,300
Fraser's dolphin......................          X   ..........       \4\ 0.01355           0.06774       67       12       42        0        0      121
Dusky dolphin.........................          X   ..........           0.00210           0.01050       10        2        6        0        0       18
Risso's dolphin.......................          X   ..........           0.00517           0.02587       26        4       16        0        0       46
Melon-headed whale....................          X   ..........       \4\ 0.00213           0.01063       10        2        7        0        0       19
Pygmy killer whale....................          X   ..........       \4\ 0.00183           0.00913        9        2        6        0        0       17
False killer whale....................          X   ..........       \4\ 0.00186           0.00932        9        2        6        0        0       17
Killer whale..........................          X   ..........       \4\ 0.00040           0.00199        2        0        1        0        0        3
Short-finned pilot whale..............  ..........          X        \4\ 0.02760           0.05520       55        9       34      574       51      723
Guadalupe fur seal....................          X   ..........       \9\ 0.00741           0.03705       37        6       23        0        0       66
California sea lion...................          X   ..........      \10\ 0.16262           0.81310      803      139      500        0        0    1,442
South American sea lion...............          X   ..........      \10\ 0.16262           0.81310      803      139      500        0        0    1,442
Northern elephant seal................  ..........          X        \9\ 0.12400           0.24800      245       43      153    2,578      229    3,248
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Please see our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for full details related to elements of this table.
\2\ Please see footnotes to Table 4 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015); densities calculated by SWFSC from sources
  listed. Note that values presented here are rounded to five digits, whereas the volumetric densities are calculated from the unrounded values.
  Densities derived from abundance estimates given in Gerrodette et al. (2008) calculated using given abundances divided by ETP area (sum of stratum
  areas given in first line of Table 1 in that publication). Densities calculated by SWFSC from abundance estimates reported in Wade and Gerrodette
  (1993) or, for those not reported in that publication, calculated from sighting data collected on board SWFSC cetacean and ecosystem assessment
  surveys in the ETP during 1998-2000, 2003, and 2006 using number of sightings (n), mean group size (s), total distance on effort (L) and effective
  strip width (w) (i.e., D = n*s/2/w/L).
\3\ Volumetric density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding
  with defined depth strata.
\4\ The most recent abundance estimates are as reported in Table 4 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). SWFSC
  considered these species sufficiently rare in the core study area during 2006 survey effort to not warrant attempting to estimate abundance
  (Gerrodette et al., 2008), but did estimate the unpublished ETP densities reported here.
\5\ The most recent abundance estimate was reported in Barlow (2006) (see Table 4 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015)).
  SWFSC estimated the unpublished ETP density reported here from sighting data collected during SWFSC surveys in 1998-2000, 2003, and 2006.
\6\ Given density is for northeastern offshore stock of pantropical spotted dolphins, and is calculated as stock abundance divided by the summed areas
  of Core, Core2, and N. Coastal strata (Gerrodette et al., 2008). This is the largest density value for the three stocks of spotted dolphin in the ETP
  and is conservatively used here to calculate potential Level B takes of spotted dolphin in the ETP.
\7\ Given density is for the eastern stock of spinner dolphins. This is the largest density value for the three stocks of spinner dolphin in the ETP and
  is conservatively used here to calculate potential Level B takes of spinner dolphin in the ETP. There is no estimate of abundance for the Central
  American stock of spinner dolphins.
\8\ Abundance estimate from which density estimate is derived includes parts of northern and southern stocks and all of the central stock (Gerrodette et
  al., 2008). There are no stock-specific abundance estimates.
\9\ No abundance information exists for Guadalupe fur seals or northern elephant seals in the ETP. Therefore, we use density estimates from the CCE
  (Table 4) as a reasonable proxy.
\10\ There are no available density estimates for California sea lions or South American sea lions in the ETP. The SWFSC reports that California sea
  lions are typically observed in the ETP only along the coast of Baja California, Mexico. Therefore, we estimate density for the California sea lion in
  the ETP using the upper bound of abundance for western Baja California (87,000; Lowry and Maravilla-Chavez, 2005) divided by the area of the N.
  Coastal stratum from Gerrodette et al., (2008). In the absence of other information, we use this value as a reasonable proxy for the South American
  sea lion.


[[Page 58994]]


             Table 6--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment in the AMLR \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                    Estimated       Estimated
                                                                                                   Volumetric        Level B         Level B
                                                                                 Area density       density      harassment, 0-    harassment,
                       Species                           Shallow      Deep     (animals/km\2\)  (animals/km\3\)       200 m          >200 m       Total
                                                                                                      \2\       --------------------------------
                                                                                                                      EK60            EK60
--------------------------------------------------------------------------------------------------------------------------------------------------------
Southern right whale.................................          X   ..........       \3\ 0.0008            0.004               1               0        1
Humpback whale.......................................          X   ..........       \3\ 0.0676            0.338              92               0       92
Antarctic minke whale................................          X   ..........       \3\ 0.0043           0.0215               6               0        6
Fin whale............................................          X   ..........      \3\ 0.08391          0.41955             114               0      114
Blue whale...........................................          X   ..........      \4\ 0.00012           0.0006               0               0        0
Sperm whale..........................................  ..........          X       \4\ 0.00065           0.0013               0               3        3
Arnoux' beaked whale.................................  ..........          X        \5\ 0.0065            0.013               4              33       37
Southern bottlenose whale............................  ..........          X        \3\ 0.0065            0.013               4              33       37
Hourglass dolphin....................................          X   ..........       \3\ 0.0086            0.043              12               0       12
Killer whale.........................................          X   ..........       \3\ 0.0077           0.0385              11               0       11
Long-finned pilot whale..............................  ..........          X       \3\ 0.00757          0.01514               4              39       43
Spectacled porpoise..................................          X   ..........       \6\ 0.0086            0.043              12               0       12
Antarctic fur seal...................................          X   ..........      \3\ 0.09996           0.4998             136               0      136
Southern elephant seal...............................  ..........          X        \3\ 0.0006           0.0012               0               3        3
Weddell seal.........................................          X   ..........       \3\ 0.0007           0.0035               1               0        1
Crabeater seal.......................................          X   ..........       \3\ 0.0013           0.0065               2               0        2
Leopard seal.........................................          X   ..........       \3\ 0.0009           0.0045               1               0        1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Please see our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for full details related to elements of this table.
\2\ Volumetric density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding
  with defined depth strata.
\3\ Densities are the largest values recorded during AMLR surveys from 2006/07 through 2010/11. Please see Table 24.
\4\ See footnotes to Table 5; densities calculated by SWFSC from sources listed.
\5\ There is no available information for this species; therefore, we use the southern bottlenose whale as source of proxy information. However, this
  species is considered uncommon relative to the southern bottlenose whale (Taylor et al., 2008); therefore, this is a conservative estimate.
\6\ There is no available information for this species; therefore, we use the hourglass dolphin as source of proxy information. However, although
  considered to potentially have a circumpolar sub-Antarctic distribution, this species is seen only rarely at sea (Hammond et al., 2008) and use of
  this value likely produces a conservative estimate.

Estimated Take Due to Physical Disturbance, Antarctic

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

                                      Table 7--Seal Response to Disturbance
----------------------------------------------------------------------------------------------------------------
                  Level                         Type of response                       Definition
----------------------------------------------------------------------------------------------------------------
1.......................................  Alert......................  Head orientation in response to
                                                                        disturbance. This may include turning
                                                                        head towards the disturbance, craning
                                                                        head and neck while holding the body
                                                                        rigid in a u-shaped position, or
                                                                        changing from a lying to a sitting
                                                                        position.
2.......................................  Movement...................  Movements away from the source of
                                                                        disturbance, ranging from short
                                                                        withdrawals over short distances to
                                                                        hurried retreats many meters in length.
3.......................................  Flight.....................  All retreats (flushes) to the water,
                                                                        another group of seals, or over the ice.
----------------------------------------------------------------------------------------------------------------

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

[[Page 58995]]



  Table 8--Estimated Annual Level B Harassment of Pinnipeds Associated
                       With AMLR Vessel Transects
------------------------------------------------------------------------
                                              Density        Estimated
                 Species                     (animals/        Level B
                                               km\2\)       harassment
------------------------------------------------------------------------
Antarctic fur seal.......................        0.09996             417
Southern elephant seal...................        0.0006                3
Weddell seal.............................        0.0007                3
Crabeater seal...........................        0.0013                5
Leopard seal.............................        0.0009                4
------------------------------------------------------------------------

Summary of Estimated Incidental Take

    Here we provide summary tables detailing the total incidental take 
authorization on an annual basis for each specified geographical 
region, as well as other information relevant to the negligible impact 
analyses.

                                  Table 9--Summary Information Related to Annual Take Authorization in the CCE, 2015-19
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Total annual                        Total M/SI +
                                                      Level B         Percent of          Level A          Estimated                             Stock
                  Species \1\                       harassment         estimated      authorization,   maximum annual M/  PBR \3\   % PBR \4\  trend \5\
                                                   authorization      population          2015-19      SI + Level A \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale.....................................               346               1.8                 0                 0        n/a         --     [uarr]
Humpback whale.................................                14               0.7                 0                 0        n/a         --     [uarr]
Minke whale....................................                13               2.7                 0                 0        n/a         --          ?
Sei whale......................................                 1               0.8                 0                 0        n/a         --          ?
Fin whale......................................                33               1.1                 0                 0        n/a         --     [uarr]
Blue whale.....................................                24               1.5                 0                 0        n/a         --          ?
Sperm whale....................................                65               6.7                 0                 0        n/a         --          ?
Kogia spp......................................                42               7.3                 1               0.2        2.7        7.4          ?
Cuvier's beaked whale..........................               146               2.2                 0                 0        n/a         --     [darr]
Baird's beaked whale...........................                34               4.0                 0                 0        n/a         --          ?
Mesoplodont beaked whales......................                40               5.7                 0                 0        n/a         --     [darr]
Bottlenose dolphin (all stocks) \6\............                32               n/a                 1               n/a        n/a         --        n/a
Bottlenose dolphin (CA/OR/WA offshore) \6\.....                32           \9\ 3.2                 8                 2        5.5       36.4          ?
Bottlenose dolphin (CA coastal)\6\.............                32           \9\ 9.9                 3                 1        2.4       41.7     [rarr]
Striped dolphin................................               301               2.8                12               2.6         82        3.2          ?
Long-beaked common dolphin.....................               348               0.3                12               2.6        610        0.4     [uarr]
Short-beaked common dolphin....................             5,592               1.4                12               2.6      3,440        0.1          ?
Pacific white-sided dolphin....................               378               1.4                35               7.2        171        4.2          ?
Northern right whale dolphin...................               176               2.1                10               2.2         48        4.6          ?
Risso's dolphin................................               188               3.0                12               2.6         39        6.7          ?
Killer whale \7\...............................                13              15.3                 0                 0        n/a         --          ?
Short-finned pilot whale.......................                12               1.6                 1               0.2        4.6        4.3          ?
Harbor porpoise \7\............................               682              23.4                 5               1.2         21        5.7          ?
Dall's porpoise................................             1,365               3.3                 5               1.2        257        0.5          ?
Guadalupe fur seal.............................               134               1.8                 0                 0        n/a         --     [uarr]
Northern fur seal \7\ (PI/EP)..................        \8\ 11,555               1.8                 5               1.2        403        0.3     [uarr]
Northern fur seal \7\ (CA).....................           \8\ 236               1.8
California sea lion............................             5,363               1.8                25               5.4      9,200        0.1     [uarr]
Steller sea lion...............................             1,141          \10\ 1.8                10               2.4      1,552        0.2     [uarr]
Harbor seal \7\................................               993               4.0                 9                 2      1,343        0.1    [uarr]/
                                                                                                                                                  [rarr]
Northern elephant seal.........................             4,743               3.8                 5               1.2      4,382       0.03     [uarr]
Unidentified cetacean..........................               n/a               n/a                 1               n/a        n/a         --        n/a
Unidentified pinniped..........................               n/a               n/a                 2               n/a        n/a         --        n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Please see preceding text and tables and our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for details.
\1\ For species with multiple stocks in CCE or for species groups (Kogia spp. and Mesoplodont beaked whales), indicated level of take could occur to
  individuals from any stock or species (not including Washington inland waters stocks of harbor porpoise and harbor seal).
\2\ This column represents the total number of incidents of M/SI + Level A that could potentially accrue to the specified species or stock and is the
  number carried forward for evaluation in the negligible impact analysis (later in this document). To reach this total, we add one to the total for
  each pinniped or cetacean that may be captured in trawl gear and one to the total for each pinniped that may be captured in longline gear. This
  represents the potential that the take of an unidentified pinniped or small cetacean could accrue to any given stock captured in that gear. The take
  authorization is formulated as a five-year total; the annual average is used only for purposes of negligible impact analysis. We recognize that
  portions of an animal may not be taken in a given year.
\3\ See Table 3 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) and following discussion for more detail regarding PBR.
\4\ Estimated maximum annual M/SI + Level A expressed as a percentage of PBR.
\5\ See relevant SARs for more information regarding stock status and trends. Interannual increases may not be interpreted as evidence of a trend. For
  harbor seals, the CA stock is increasing, while the OR/WA coastal stock may have reached carrying capacity and appears stable. There are no evident
  trends for any harbor porpoise stock or for offshore killer whales.
\6\ Total potential take of bottlenose dolphins in trawl gear has been apportioned by stock according to typical occurrence of that stock relative to
  SWFSC survey locations. We assume that only one total take of a bottlenose dolphin from either stock may occur in longline gear; therefore the
  estimated annual maximum numbers for bottlenose dolphin reflect the stock-specific trawl estimate plus one for the longline take plus one for the
  potential take of an unidentified cetacean.

[[Page 58996]]

 
\7\ These species have multiple stocks in the CCE. Values for ``percent of estimated population'' and ``PBR'' (where relevant) calculated for the stock
  with the lowest population abundance and/or PBR (as appropriate). This approach assumes that all indicated takes would accrue to the stock in
  question, which is a very conservative assumption. Stocks in question are the southern resident killer whale, Morro Bay harbor porpoise, California
  northern fur seal, and OR/WA coastal harbor seal.
\8\ Calculated on the basis of relative abundance; i.e., of 6,083 total estimated incidents of Level B harassment, we would expect on the basis of
  relative abundance in the study area that 98 percent would accrue to the Pribilof Islands/Eastern Pacific stock and two percent would accrue to the
  California stock.
\9\ Calculated assuming that all 32 estimated annual incidents of Level B harassment occur to a given stock.
\10\ A range is provided for Steller sea lion abundance. We have used the lower bound of the given range for calculation of this value.


                                                 Table 10--Annual Take Authorization in the ETP, 2015-19
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Total annual                          Total M/SI +
                                             Level B           Percent of          Level A       Estimated maximum
              Species \1\                   harassment         estimated        authorization,     annual M/SI +         PBR \3\           % PBR \4\
                                          authorization      population \1\        2015-19          Level A \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale........................                  1               0.04                  0                  0                n/a             --
Minke whale...........................                  0                  0                  0                  0                n/a             --
Bryde's whale.........................                  4               0.04                  0                  0                n/a             --
Sei whale.............................                  0                  0                  0                  0                n/a             --
Fin whale.............................                  0                  0                  0                  0                n/a             --
Blue whale............................                  2                0.1                  0                  0                n/a             --
Sperm whale...........................                  4                0.1                  0                  0                n/a             --
Dwarf sperm whale.....................                 14                0.1                  1                0.2           88 (0.2)              0.2
Cuvier's beaked whale.................                 24                0.1                  0                  0                n/a             --
Longman's beaked whale................                  1                0.1                  0                  0                n/a             --
Mesoplodont beaked whales.............                 30                0.1                  0                  0                n/a             --
Rough-toothed dolphin.................                 45               0.04                  1                0.2         897 (0.02)              0.02
Bottlenose dolphin....................                139               0.04                  1                0.2       2,850 (0.01)              0.01
Striped dolphin.......................                401               0.04                  1                0.2      8,116 (0.002)              0.002
Pantropical spotted dolphin...........              1,088            \5\ 0.4                  1                0.2     12,334 (0.002)              0.002
Spinner dolphin.......................                442            \5\ 0.1                  0                  0                n/a             --
Long-beaked common dolphin............                173               0.05                  1                0.2       2,787 (0.01)              0.01
Short-beaked common dolphin...........              1,300               0.04                  1                0.2     25,133 (0.001)              0.001
Fraser's dolphin......................                121               0.04                  0                  0                n/a             --
Dusky dolphin.........................                 18               0.04                  0                  0                n/a             --
Risso's dolphin.......................                 46               0.04                  1                0.2         831 (0.02)              0.02
Melon-headed whale....................                 19               0.04                  0                  0                n/a             --
Pygmy killer whale....................                 17               0.04                  0                  0                n/a             --
False killer whale....................                 17               0.04                  1                0.2          244 (0.1)              0.1
Killer whale..........................                  3               0.04                  0                  0                n/a             --
Short-finned pilot whale..............                723                0.1                  1                0.2      4,751 (0.004)              0.004
Guadalupe fur seal....................                 66            \6\ 0.9                  0                  0                n/a             --
California sea lion...................              1,442                1.4                  5                1.2        1,050 (0.1)              0.1
South American sea lion...............              1,442                1.0                  5                1.2        1,500 (0.1)              0.1
Northern elephant seal................              3,248            \6\ 2.6                  0                  0                n/a             --
Unidentified pinniped.................                n/a                n/a                  1                n/a                n/a             --
--------------------------------------------------------------------------------------------------------------------------------------------------------
Please see preceding text and tables and our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for details.
\1\ For species with multiple stocks in ETP or for species groups (Mesoplodont beaked whales), indicated level of take could occur to individuals from
  any stock or species.
\2\ This column represents the total number of incidents of M/SI + Level A that could potentially accrue to the specified species and is the number
  carried forward for evaluation in the negligible impact analysis (later in this document). To reach this total, we add one to the total for each
  pinniped that may be captured in longline gear. This represents the potential that the take of an unidentified pinniped could accrue to any given
  species captured in that gear. The take authorization is formulated as a five-year total; the annual average is used only for purposes of negligible
  impact analysis. We recognize that portions of an animal may not be taken in a given year.
\2\ For M/SI + Level A resulting from gear interaction, a five-year take estimate was developed. Annual take estimate presented for reference; we
  recognize that portions of animals may not be captured or entangled in gear. For purposes of negligible impact analysis (later in this document), we
  add authorized takes for unidentified pinnipeds to total for all relevant species.
\3\ PBR values calculated by SWFSC; a pooled PBR was calculated for all stocks of the pantropical spotted dolphin (see Table 4 in our notice of proposed
  rulemaking (80 FR 8166; February 13, 2015)).
\4\ Estimated maximum annual M/SI + Level A expressed as a percentage of PBR.
\5\ Evaluated against the stock with the lowest estimated abundance. For spinner dolphin, there is no abundance estimate for the Central American stock.
\6\ There are no abundance estimates for these species in the ETP. We use the CCE abundance estimates as proxies in these calculations.


[[Page 58997]]


                            Table 11--Annual Take Authorization in the AMLR, 2015-19
----------------------------------------------------------------------------------------------------------------
                                      Estimated annual
                                          Level B        Estimated annual     Total annual        Percent of
              Species                    harassment          Level B            Level B            estimated
                                         (acoustic       harassment (on-       harassment       population \1\
                                         exposure)       ice disturbance)    authorization
----------------------------------------------------------------------------------------------------------------
Southern right whale...............                  1                  0                  1              0.1
Humpback whale.....................                 92                  0                 92              1.0
Antarctic minke whale..............                  6                  0                  6              0.03
Fin whale..........................                114                  0                114              2.4
Blue whale.........................                  0                  0                  0              0
Sperm whale........................                  3                  0                  3              0.02
Arnoux' beaked whale \2\...........                 37                  0                 37            n/a
Southern bottlenose whale..........                 37                  0                 37              0.1
Hourglass dolphin..................                 12                  0                 12              0.01
Killer whale.......................                 11                  0                 11              0.04
Long-finned pilot whale............                 43                  0                 43              0.02
Spectacled porpoise \2\............                 12                  0                 12            n/a
Antarctic fur seal.................                136                417                553              0.02
Southern elephant seal.............                  3                  3                  6              0.001
Weddell seal.......................                  1                  3                  4          \3\ 0.001
Crabeater seal.....................                  2                  5                  7          \3\ 0.0001
Leopard seal.......................                  1                  4                  5          \3\ 0.002
----------------------------------------------------------------------------------------------------------------
Please see preceding text and tables and our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for
  details.
\1\ See Table 5 in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) for abundance information.
\2\ There is no available abundance information for these species. See ``Small Numbers Analyses'' below for
  further discussion.
\3\ A range is provided for these species' abundance. We have used the lower bound of the given range for
  calculation of these values.

Analyses and Determinations

    Here we provide separate negligible impact analyses and small 
numbers analyses for each of the three specified geographical regions 
for which we issue regulations. We received no public comments or new 
information indicating any deficiencies in our preliminary 
determinations, as provided in our notice of proposed rulemaking (80 FR 
8166; February 13, 2015). Those determinations and associated analyses 
are reproduced here.

Negligible Impact Analyses

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' 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. We also evaluate the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. The impacts from other past and ongoing anthropogenic 
activities are incorporated into these analyses via their impacts on 
the environmental baseline (e.g., as reflected in the density/
distribution and status of the species, population size and growth 
rate).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in Tables 3-5 of the notice of proposed rulemaking 
(80 FR 8166; February 13, 2015), given that the anticipated effects of 
SWFSC's research activities on marine mammals are expected to be 
relatively similar in nature. Where there are meaningful differences 
between species or stocks, or groups of species, in anticipated 
individual responses to activities, impact of expected take on the 
population due to differences in population status, or impacts on 
habitat, they are described independently in the analysis below.
    In 1988, Congress amended the MMPA, with provisions for the 
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 set 
allowable take levels incidental to commercial fishing operations led 
NMFS to suggest a new and simpler conceptual means for assuring that 
incidental take does not cause any marine mammal species or stock to be 
reduced or to be maintained below the lower limit of its Optimum 
Sustainable Population (OSP) level. That concept (Potential Biological 
Removal; PBR) was incorporated in the 1994 amendments to the MMPA, 
wherein Congress enacted MMPA sections 117 and 118, establishing a new 
regime governing the incidental taking of marine mammals in commercial 
fishing operations and stock assessments.
    PBR, which is defined by the MMPA (16 U.S.C. 1362(20)) as ``the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population,'' is one tool 
that can be used to help evaluate the effects of M/SI on a marine 
mammal stock. OSP is defined by the MMPA (16 U.S.C. 1362(9)) as ``the 
number of animals which will result in the maximum productivity of the 
population or the species, keeping in mind the carrying capacity of the 
habitat and the health of the ecosystem of which they form a 
constituent element.'' A primary goal of the MMPA is to ensure that 
each stock of marine mammal either does not have a level of human-
caused M/SI that is likely to cause the stock to be reduced below its 
OSP level or, if the stock is depleted (i.e., below its OSP level), 
does not have a level of human-caused mortality and serious injury that 
is likely to delay restoration of the stock to OSP level by more than 
ten percent in comparison with recovery time in the absence of human-
caused M/SI.

[[Page 58998]]

    PBR appears within the MMPA only in section 117 (relating to 
periodic stock assessments) and in portions of section 118 describing 
requirements for take reduction plans for reducing marine mammal 
bycatch in commercial fisheries. PBR was not designed as an absolute 
threshold limiting human activities, but as a means to evaluate the 
relative impacts of those activities on marine mammal stocks. 
Specifically, assessing M/SI relative to a stock's PBR may signal to 
NMFS the need to establish take reduction teams in commercial fisheries 
and may assist NMFS and existing take reduction teams in the 
identification of measures to reduce and/or minimize the taking of 
marine mammals by commercial fisheries to a level below a 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 may prioritize working with a take reduction team to further 
mitigate the effects of fishery activities via additional bycatch 
reduction measures.
    Since the introduction of PBR, NMFS has used the concept almost 
entirely within the context of implementing sections 117 and 118 and 
other commercial fisheries management-related provisions of the MMPA, 
including those within section 101(a)(5)(E) related to the taking of 
ESA-listed marine mammals incidental to commercial fisheries (64 FR 
28800; May 27, 1999). The MMPA requires that PBR be estimated in stock 
assessment reports and that it be used in applications related to the 
management of take incidental to commercial fisheries (i.e., the take 
reduction planning process described in section 118 of the MMPA), but 
nothing in the MMPA requires the application of PBR outside the 
management of commercial fisheries interactions with marine mammals. 
Although NMFS has not historically applied PBR outside the context of 
sections 117 and 118, NMFS recognizes that as a quantitative tool, PBR 
may be useful in certain instances for evaluating the impacts of other 
human-caused activities on marine mammal stocks. In this analysis, we 
consider incidental M/SI relative to PBR for each affected stock, in 
addition to considering the interaction of those removals with 
incidental taking of that stock by harassment, within our evaluation of 
the likely impacts of the proposed activities on marine mammal stocks 
and in determining whether those impacts are likely to be negligible. 
Our use of PBR in this case does not make up the entirety of our impact 
assessment, but rather is being utilized as a known, quantitative 
metric for evaluating whether the proposed activities are likely to 
have a population-level effect on the affected marine mammal stocks. 
For the purposes of analyzing this specified activity, NMFS 
acknowledges that some of the fisheries research activities use similar 
gear and may have similar effects, but on a smaller scale, as marine 
mammal take by commercial fisheries. The application of PBR for this 
specified activity of fisheries research allows NMFS to inform the take 
reduction team process which uses PBR to evaluate marine mammal bycatch 
in commercial fisheries due to the similarities of both activities.
    California Current Ecosystem--Please refer to Table 9 for 
information relating to this analysis. As described in greater depth 
previously (see ``Acoustic Effects'', in our notice of proposed 
rulemaking (80 FR 8166; February 13, 2015)), we do not believe that 
SWFSC use of active acoustic sources has the likely potential to cause 
any effect exceeding Level B harassment of marine mammals. In addition, 
for the majority of species, the authorized annual take by Level B 
harassment is very low in relation to the population abundance estimate 
(less than ten percent) for each stock.
    We have produced what we believe to be conservative estimates of 
potential incidents of Level B harassment. The procedure for producing 
these estimates, described in detail in our notice of proposed 
rulemaking (80 FR 8166; February 13, 2015) and summarized above in 
``Estimated Take Due to Acoustic Harassment'', represents NMFS' best 
effort towards balancing the need to quantify the potential for 
occurrence of Level B harassment due to production of underwater sound 
with a general lack of information related to the specific way that 
these acoustic signals, which are generally highly directional and 
transient, interact with the physical environment and to a meaningful 
understanding of marine mammal perception of these signals and 
occurrence in the areas where SWFSC operates. The sources considered 
here have moderate to high output frequencies (10 to 180 kHz), 
generally short ping durations, and are typically focused (highly 
directional) to serve their intended purpose of mapping specific 
objects, depths, or environmental features. In addition, some of these 
sources can be operated in different output modes (e.g., energy can be 
distributed among multiple output beams) that may lessen the likelihood 
of perception by and potential impacts on marine mammals in comparison 
with the quantitative estimates that guide our proposed take 
authorization.
    In particular, low-frequency hearing specialists (i.e., mysticetes) 
and certain pinnipeds (i.e., otariids) are less likely to perceive or, 
given perception, to react to these signals than the quantitative 
estimates indicate. These groups have reduced functional hearing at the 
higher frequencies produced by active acoustic sources considered here 
(e.g., primary operating frequencies of 40-180 kHz) and, based purely 
on their auditory capabilities, the potential impacts are likely much 
less (or non-existent) than we have calculated as these relevant 
factors are not taken into account.
    However, for purposes of this analysis, we assume that the take 
levels proposed for authorization will occur. As described previously, 
there is some minimal potential for temporary effects to hearing for 
certain marine mammals (i.e., odontocete cetaceans), but most effects 
would likely be limited to temporary behavioral disturbance. Effects on 
individuals that are taken by Level B harassment will likely be limited 
to reactions such as increased swimming speeds, increased surfacing 
time, or decreased foraging (if such activity were occurring), 
reactions that are considered to be of low severity (e.g., Southall et 
al., 2007). There is the potential for behavioral reactions of greater 
severity, including displacement, but because of the directional nature 
of the sources considered here and because the source is itself moving, 
these outcomes are unlikely and would be of short duration if they did 
occur. Although there is no information on which to base any 
distinction between incidents of harassment and individuals harassed, 
the same factors, in conjunction with the fact that SWFSC survey effort 
is widely dispersed in space and time, indicate that repeated exposures 
of the same individuals would be very unlikely.
    We now consider the level of taking by M/SI + Level A proposed for 
authorization. First, it is likely that required injury determinations 
will show some undetermined number of gear interactions to result in 
Level A harassment rather than serious injury and that, therefore, our 
authorized take numbers are overestimates with regard solely to M/SI. 
In addition, we note that these take levels are likely precautionary 
overall when considering that: (1) Estimates for historically taken 
species were developed assuming that the annual average number of takes 
from 2008-12, which is heavily influenced by

[[Page 58999]]

inclusion of a year where dramatically more marine mammals were 
incidentally taken than any other year on record, would occur in each 
year from 2015-19; and that (2) the majority of species for which take 
authorization is proposed have never been taken in SWFSC surveys.
    However, assuming that all of the takes proposed for authorization 
actually occur, we assess these quantitatively by comparing to the 
calculated PBR for each stock. Estimated M/SI for all stocks is 
significantly less than PBR (below ten percent, even when making the 
unlikely assumption that all takes for species with multiple stocks 
would accrue to the stock with the lowest PBR) with the exception of 
the two bottlenose dolphin stocks. The annual average take by M/SI + 
Level A for these stocks--which for each assumes that the single take 
of a bottlenose dolphin in longline gear that is proposed for 
authorization occurs for that stock, as well as that the single take of 
an unidentified cetacean proposed for authorization occurs--is, 
however, well below the PBR (takes representing 36 and 42 percent). We 
also note that, for the California coastal stock, the PBR is likely 
biased low because the population abundance estimate, which is based on 
photographic mark-recapture surveys, does not reflect that 
approximately 35 percent of dolphins encountered lack identifiable 
dorsal fin marks (Defran and Weller, 1999). If 35 percent of all 
animals lack distinguishing marks, then the true population size (and 
therefore PBR) would be approximately 450-500 animals (i.e., 
approximately forty-fifty percent larger than the current estimate) 
(Carretta et al., 2015). The California coastal stock is believed to be 
stable, based on abundance estimates from 1987-89, 1996-98, and 2004-05 
(Dudzik et al., 2006), and current annual human-caused M/SI is 
considered to be insignificant and approaching zero (Carretta et al., 
2015). No population trends are known for the offshore stock. However, 
these proposed levels of take do not take into consideration the 
potential efficacy of the mitigation measures proposed by the SWFSC. 
Although potentially confounded by other unknown factors, incidental 
take of marine mammals in SWFSC survey gear (particularly trawl nets) 
has decreased significantly from the high in 2008 since the measures 
proposed here were implemented in 2009. We believe this demonstrates 
the likely potential for reduced takes of any species, including 
bottlenose dolphins, relative to these take estimates which are 
formulated based on the level of taking that occurred in 2008.
    For certain species of greater concern, we also evaluate the 
proposed take authorization for Level B harassment in conjunction with 
that proposed for M/SI + Level A. For the bottlenose dolphin, if all 
acoustic takes occurred to a single stock, it would comprise 9.9 
percent of the California coastal stock and only 3.2 percent of the 
offshore stock. However, it is unlikely that all of these takes would 
accrue to a single stock and the significance of this magnitude of 
Level B harassment is even lower. We do not consider the proposed level 
of acoustic take for bottlenose dolphin to represent a significant 
additional population stressor when considered in context with the 
proposed level of take by M/SI + Level A. Harbor porpoise are known to 
demonstrate increased sensitivity to acoustic signals in the frequency 
range produced by some SWFSC active acoustic sources (see discussion 
above under ``Acoustic Effects''). The total annual taking by Level B 
harassment proposed for authorization for harbor porpoise would likely 
be distributed across all five stocks of this species that occur in the 
CCE. Moreover, because the SWFSC does not regularly operate the surveys 
described above within the confines of Morro Bay, Monterey Bay, or San 
Francisco Bay, and because SWFSC survey effort is sparsely distributed 
in space and time, we would expect any incidents of take occurring to 
animals of those stocks to be transient events, largely occurring to 
individuals of those populations occurring outside those bays but 
within the general limit of harbor porpoise occurrence (i.e., the 200-m 
isobath). Finally, approximately 95 percent of annual SWFSC line-
kilometers traveled using active acoustic sources are beyond the 200-m 
isobaths. This was not taken into account in the calculation of 
acoustic take estimates; therefore, these estimates are likely 
substantial overestimates of the number of incidents of Level B 
harassment that may occur for harbor porpoise.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the planned mitigation measures, we 
find that the total marine mammal take from SWFSC's fisheries research 
activities will have a negligible impact on the affected marine mammal 
species or stocks in the California Current Ecosystem. In summary, this 
finding of negligible impact is founded on the following factors: (1) 
The possibility of injury, serious injury, or mortality from the use of 
active acoustic devices may reasonably be considered discountable; (2) 
the anticipated incidents of Level B harassment from the use of active 
acoustic devices consist of, at worst, temporary and relatively minor 
modifications in behavior; (3) the predicted number of incidents of 
combined Level A harassment, serious injury, and mortality are at 
insignificant levels relative to all affected stocks but two; (4) the 
predicted number of incidents of both Level B harassment and potential 
M/SI likely represent overestimates; and (5) the presumed efficacy of 
the planned mitigation measures in reducing the effects of the 
specified activity to the level of least practicable adverse impact. In 
addition, no M/SI is proposed for authorization for any species or 
stock that is listed under the ESA or considered depleted under the 
MMPA. In combination, we believe that these factors demonstrate that 
the specified activity will have only short-term effects on individuals 
(resulting from Level B harassment) and that the total level of taking 
will not impact rates of recruitment or survival sufficiently to result 
in population-level impacts.
    Eastern Tropical Pacific--Please refer to Table 10 for information 
relating to this analysis. The entirety of the qualitative discussion 
provided above for the California Current Ecosystem is applicable to 
SWFSC use of active acoustic sources in the ETP, and is not repeated 
here. As for the CCE, we compare the maximum annual take estimate to 
the calculated PBR level. However, proposed take by M/SI + Level A is 
substantially less than one percent (in most cases, less than a tenth 
of a percent) of population abundance for all species for which such 
take is proposed to be authorized and, as for the CCE, these proposed 
levels of take are likely overestimates. We do propose to authorize one 
occurrence of M/SI over five years for the pantropical spotted dolphin; 
two of the three stocks of this species in the ETP are considered 
depleted under the MMPA. Therefore, although the maximum annual take 
estimate for this species is extremely low relative to the PBR level 
(0.002 percent), we provide additional discussion.
    In the ETP, yellowfin tuna are known to associate with several 
species of dolphin, including spinner, spotted, and common dolphins. As 
the ETP tuna purse-seine fishery began in the late 1950s, incidental 
take of dolphins increased to very high levels and continued through 
the 1960s and into the 1970s (Perrin, 1969). Through a

[[Page 59000]]

series of combined actions, including passage of the MMPA in 1972, 
subsequent amendments, regulations, and mitigation measures, dolphin 
bycatch in the ETP has since decreased 99 percent in the international 
fishing fleet, and was eliminated by the U.S. fleet (Gerrodette and 
Forcada, 2005). However, the northeastern offshore and coastal stocks 
of spotted dolphin are believed to have declined roughly eighty and 
sixty percent, respectively, from pre-exploitation abundance estimates 
(Perrin, 2009). Although incidental take by the international fishing 
fleet is believed to have declined to the low hundreds of individuals 
annually (Perrin, 2009), the populations have not grown toward recovery 
as rapidly as expected (e.g., the population trend for the northeastern 
offshore stock is flat; Wade et al., 2007). Continued (non-lethal) 
chase and capture in the fishery may have an indirect effect on 
fecundity or survival, or there may have been a change in carrying 
capacity of the ecosystem for this species (Archer et al., 2004; 
Gerrodette and Forcada, 2005; Wade et al., 2007; Perrin, 2009). 
Nevertheless, the proposed authorized take of a single pantropical 
spotted dolphin over five years--which could occur to either the 
northeastern offshore or coastal stocks, or the non-depleted western 
and southern offshore stock--represents a negligible impact to any of 
these stocks, even when considered in context with incidental take in 
international commercial fisheries (the total taking, which is known 
only approximately, would likely be around one percent of the total 
abundance). The taking proposed here represents an insignificant 
incremental increase over any incidental take occurring in commercial 
fisheries.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the planned mitigation measures, we 
find that the total marine mammal take from SWFSC's fisheries research 
activities will have a negligible impact on the affected marine mammal 
species or stocks in the Eastern Tropical Pacific. In summary, this 
finding of negligible impact is founded on the following factors: (1) 
The possibility of injury, serious injury, or mortality from the use of 
active acoustic devices may reasonably be considered discountable; (2) 
the anticipated incidents of Level B harassment from the use of active 
acoustic devices consist of, at worst, temporary and relatively minor 
modifications in behavior; (3) the predicted number of incidents of 
combined Level A harassment, serious injury, and mortality are at 
insignificant levels relative to all affected stocks; (4) the predicted 
number of incidents of both Level B harassment and potential M/SI 
likely represent overestimates; and (5) the presumed efficacy of the 
planned mitigation measures in reducing the effects of the specified 
activity to the level of least practicable adverse impact. In addition, 
no M/SI is proposed for authorization for any species or stock that is 
listed under the ESA. In combination, we believe that these factors 
demonstrate that the specified activity will have only short-term 
effects on individuals (resulting from Level B harassment) and that the 
total level of taking will not impact rates of recruitment or survival 
sufficiently to result in population-level impacts.
    Antarctic Marine Living Resources Ecosystem--Please refer to Table 
11 for information relating to this analysis. No take by Level A 
harassment, serious injury, or mortality is proposed for authorization 
in the AMLR. The entirety of the qualitative discussion provided above 
for the California Current Ecosystem is applicable to SWFSC use of 
active acoustic sources in the AMLR, and is not repeated here. Given 
the limited spatio-temporal footprint of SWFSC survey activity in the 
Antarctic--survey activity only occurs within a limited area of 
Antarctic waters and only for a few months in any given year--we 
believe that the level of taking by Level B harassment proposed for 
authorization represents a negligible impact to these 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 planned mitigation measures, we 
find that the total marine mammal take from SWFSC's fisheries research 
activities will have a negligible impact on the affected marine mammal 
species or stocks in the Antarctic Marine Living Resources Ecosystem. 
In summary, this finding of negligible impact is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality from the use of active acoustic devices may reasonably be 
considered discountable; (2) the anticipated incidents of Level B 
harassment from the use of active acoustic devices consist of, at 
worst, temporary and relatively minor modifications in behavior; (3) no 
incidental take by Level A harassment, serious injury, or mortality is 
proposed; (4) the predicted number of incidents of Level B harassment 
likely represent overestimates; and (5) the presumed efficacy of the 
planned mitigation measures in reducing the effects of the specified 
activity to the level of least practicable adverse impact. In 
combination, we believe that these factors demonstrate that the 
specified activity will have only short-term effects on individuals. 
The specified activity is not expected to impact rates of recruitment 
or survival and will therefore not result in population-level impacts.

Small Numbers Analyses

    California Current Ecosystem--Please see Table 9 for information 
relating to this small numbers analysis. The total amount of taking 
proposed for authorization is less than ten percent for all stocks, 
with the exception of certain species-wide totals when evaluated 
against the stock with the smallest abundance. The total taking for 
killer whales represents approximately fifteen percent of the southern 
resident stock; however, given the limited range of this stock relative 
to SWFSC survey operations, it is extremely unlikely that all takes 
would accrue to that stock. The total taking represents less than ten 
percent of the population abundance for other stocks of killer whale. 
The total species-wide taking by Level B harassment for harbor porpoise 
represents approximately 23 percent of the Morro Bay stock of harbor 
porpoise, which has the smallest population abundance of five harbor 
porpoise stocks in the CCE. Although this value is within the bounds of 
takings that NMFS has considered to be small in the past, it is likely 
that the taking will be distributed in some fashion across the five 
stocks; and therefore, the amount of take occurring for any one stock 
would be much less than 23 percent.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed mitigation measures, 
we find that small numbers of marine mammals will be taken relative to 
the populations of the affected species or stocks in the California 
Current Ecosystem.
    Eastern Tropical Pacific--Please refer to Table 10 for information 
relating to this analysis. The total amount of taking proposed for 
authorization is less than three percent for all stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed mitigation measures, 
we find that small numbers of marine mammals

[[Page 59001]]

will be taken relative to the populations of the affected species or 
stocks in the Eastern Tropical Pacific.
    Antarctic Marine Living Resources Ecosystem--Please refer to Table 
11 for information relating to this analysis. The total amount of 
taking proposed for authorization is less than three percent for all 
stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed mitigation measures, 
we find that small numbers of marine mammals will be taken relative to 
the populations of the affected species or stocks in the Antarctic 
Marine Living Resources Ecosystem.

Monitoring and Reporting

    In order to issue an incidental take authorization for an activity, 
section 101(a)(5)(A) of the MMPA states that NMFS must set forth 
``requirements pertaining to the monitoring and reporting of such 
taking.'' The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for incidental take authorizations must include 
the suggested means of accomplishing the necessary monitoring and 
reporting that will result in increased knowledge of the species and of 
the level of taking or impacts on populations of marine mammals that 
are expected to be present in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving, or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of an individual; or (2) population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    SWFSC plans to make more systematic its training, operations, data 
collection, animal handling and sampling protocols, etc. in order to 
improve its ability to understand how mitigation measures influence 
interaction rates and ensure its research operations are conducted in 
an informed manner and consistent with lessons learned from those with 
experience operating these gears in close proximity to marine mammals. 
It is in this spirit that the monitoring requirements described below 
were crafted.

Visual Monitoring

    Marine mammal watches are a standard part of conducting fisheries 
research activities, and are implemented as described previously in 
``Mitigation''. Dedicated marine mammal visual monitoring occurs as 
described (1) for a minimum of thirty minutes prior to deployment of 
midwater trawl and pelagic longline gear; (2) throughout deployment and 
active fishing of all research gears; (3) for a minimum of thirty 
minutes prior to retrieval of pelagic longline gear; and (4) throughout 
retrieval of all research gear. This visual monitoring is performed by 
trained SWFSC personnel with no other responsibilities during the 
monitoring period. Observers record the species and estimated number of 
animals present and their behaviors, which may be valuable information 
towards an understanding of whether certain species may be attracted to 
vessels or certain survey gears. Separately, marine mammal watches are 
conducted by watch-standers (those navigating the vessel and other 
crew; these will typically not be SWFSC personnel) at all times when 
the vessel is being operated. The primary focus for this type of watch 
is to avoid striking marine mammals and to generally avoid navigational 
hazards. These watch-standers typically have other duties associated 
with navigation and other vessel operations and are not required to 
record or report to the scientific party data on marine mammal 
sightings, except when gear is being deployed or retrieved.
    In the Antarctic only, the SWFSC will monitor any potential 
disturbance of pinnipeds on ice, paying particular attention to the 
distance at which different species of pinniped are disturbed. 
Disturbance will be recorded according to the three-point scale, 
representing increasing seal response to disturbance, shown in Table 7.

Marine Mammal Excluder Device

    The SWFSC plans to evaluate development of an MMED suitable for use 
in the modified-Cobb midwater trawl. Modified-Cobb trawl nets are 
considerably smaller than Nordic 264 trawl nets, are fished at slower 
speeds, and have a different shape and functionality than the Nordic 
264. Due to the smaller size of the modified-Cobb net, this gear does 
not yet have a suitable marine mammal excluder device but research and 
design work are currently being performed to develop effective 
excluders that will not appreciably affect the catchability of the net 
and therefore maintain continuity of the fisheries research dataset.
    A reduction in target catch rates is an issue that has arisen from 
preliminary analyses of MMED use in Nordic 264 gear. Although sample 
sizes are small, these results have cast some doubt as to whether the 
MMED would be suitable for surveys with a primary objective of 
estimating abundance, as opposed to collecting biological samples. If 
data collected during testing of the modified-Cobb MMED continues to 
indicate reduced catch rates, SWFSC would continue testing to explore 
whether it is possible to calculate reliable conversion factors to 
equate catches when using the MMED to catches when it was not. If this 
is not possible, then use of the MMED for certain surveys may 
compromise primary research objectives. Therefore, use of the MMED may 
be considered not practicable

Analysis of Bycatch Patterns

    In addition, SWFSC plans to explore patterns in past marine mammal 
bycatch in its fisheries research surveys to better understand what 
factors (e.g., oceanographic conditions) might increase the likelihood 
of take. SWFSC staff have been using predictive machine-learning 
methods (classification trees) for various applications; using similar 
methods, the SWFSC plans to examine research trawl data for any link 
between trawl variables and observed marine mammal bycatch. Some of the 
variables SWFSC is currently considering for this analysis are: moon 
phase, sky cover, pinger presence, trawl speed, vessel sonar use during 
trawl, use of deck lights, etc. SWFSC staff will also review historical 
fisheries research data to determine whether sufficient data exist for 
similar analysis. If take patterns emerge, the SWFSC will focus future 
research on reducing or eliminating high-risk factors in ways that 
enable scientifically important surveys to continue with minimized 
environmental impact.

[[Page 59002]]

Training

    SWFSC anticipates that additional information on practices to avoid 
marine mammal interactions can be gleaned from training sessions and 
more systematic data collection standards. The SWFSC will conduct 
annual trainings 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, recording of count and disturbance observations 
(relevant to AMLR surveys), completion of datasheets, and use of 
equipment. Some of these topics may be familiar to SWFSC staff, who may 
be professional biologists; the SWFSC shall determine the agenda for 
these trainings and ensure that all relevant staff have necessary 
familiarity with these topics. The first training, to be conducted in 
2015, will include three primary elements.
    First, the course will provide an overview of the purpose and need 
for the authorization, including research gears that have historically 
resulted in incidental capture of protected species, mandatory 
mitigation measures by gear and the purpose for each, and species that 
SWFSC is authorized to incidentally take.
    Second, the training will provide detailed descriptions of 
reporting, data collection, and sampling protocols. This portion of the 
training will include instruction on how to complete new data 
collection forms such as the marine mammal watch log, the incidental 
take form (e.g., specific gear configuration and details relevant to an 
interaction with protected species), and forms used for species ID and 
biological sampling. The biological data collection and sampling 
training module will include the same sampling and necropsy training 
that is used for the West Coast Regional Observer training.
    SWFSC will also dedicate a portion of training to discussion of 
best professional judgment (which is recognized as an integral 
component of mitigation implementation; see ``Mitigation''), including 
use in any incidents of marine mammal interaction and instructive 
examples where use of best professional judgment was determined to be 
successful or unsuccessful. We recognize that many factors come into 
play regarding decision-making at sea and that it is not practicable to 
simplify what are inherently variable and complex situational decisions 
into rules that may be defined on paper. However, it is our intent that 
use of best professional judgment be an iterative process from year to 
year, in which any at-sea decision-maker (i.e., responsible for 
decisions regarding the avoidance of marine mammal interactions with 
survey gear through the application of best professional judgment) 
learns from the prior experience of all relevant SWFSC personnel 
(rather than from solely their own experience). The outcome should be 
increased transparency in decision-making processes where best 
professional judgment is appropriate and, to the extent possible, some 
degree of standardization across common situations, with an ultimate 
goal of reducing marine mammal interactions. It is the responsibility 
of the SWFSC to facilitate such exchange.

Handling Procedures and Data Collection

    Improved standardization of handling procedures were discussed 
previously in ``Mitigation''. In addition to the benefits implementing 
these protocols are believed to have on the animals through increased 
post-release survival, SWFSC believes adopting these protocols for data 
collection will also increase the information on which ``serious 
injury'' determinations (NMFS, 2012a, b) are based and improve 
scientific knowledge about marine mammals that interact with fisheries 
research gears and the factors that contribute to these interactions. 
SWFSC personnel will be provided standard guidance and training 
regarding handling of marine mammals, including how to identify 
different species, bring an individual aboard a vessel, assess the 
level of consciousness, remove fishing gear, return an individual to 
water and log activities pertaining to the interaction.
    SWFSC will record interaction information on either existing data 
forms created by other NMFS programs (e.g., see Appendix B.2 of SWFSC's 
application) or will develop their own standardized forms. To aid in 
serious injury determinations and comply with the current NMFS Serious 
Injury Guidelines (NMFS, 2012a, b), researchers will also answer a 
series of supplemental questions on the details of marine mammal 
interactions (see Appendix B.3 of SWFSC's application).
    Finally, for any marine mammals that are killed during fisheries 
research activities, scientists will collect data and samples pursuant 
to the SWFSC MMPA and ESA research and salvage permit and to the 
``Detailed Sampling Protocol for Marine Mammal and Sea Turtle 
Incidental Takes on SWFSC Research Cruises'' (see Appendix B.4 of 
SWFSC's application).

Reporting

    As is normally the case, SWFSC will coordinate with the relevant 
stranding coordinators for any unusual marine mammal behavior and any 
stranding, beached live/dead, or floating marine mammals that are 
encountered during field research activities. The SWFSC will follow a 
phased approach with regard to the cessation of its activities and/or 
reporting of such events, as described in the proposed regulatory texts 
following this preamble. In addition, Chief Scientists (or cruise 
leader, CS) will provide reports to SWFSC leadership and to the Office 
of Protected Resources (OPR). As a result, when marine mammals interact 
with survey gear, whether killed or released alive, a report provided 
by the CS will fully describe any observations of the animals, the 
context (vessel and conditions), decisions made and rationale for 
decisions made in vessel and gear handling. The circumstances of these 
events are critical in enabling SWFSC and OPR to better evaluate the 
conditions under which takes are most likely occur. We believe in the 
long term this will allow the avoidance of these types of events in the 
future.
    The SWFSC will submit annual summary reports to OPR including: (1) 
Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or 
equivalent sources) were predominant (see ``Estimated Take by Acoustic 
Harassment'' for further discussion), specific to each region; (2) 
summary information regarding use of all longline (including bottom and 
vertical lines) and trawl (including bottom trawl) gear, including 
number of sets, hook hours, tows, etc., specific to each region and 
gear; (3) accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why; (4) summary 
information related to any on-ice disturbance of pinnipeds, including 
event-specific total counts of animals present, counts of reactions 
according to the three-point scale shown in Table 7, and distance of 
closest approach; (5) a written evaluation of the effectiveness of 
SWFSC mitigation strategies in reducing the number of marine mammal 
interactions with survey gear, including best professional judgment and 
suggestions for changes to the mitigation strategies, if any; and (6) 
updates as appropriate regarding the development/implementation of 
MMEDs and analysis

[[Page 59003]]

of bycatch patterns. The period of reporting will be annually, 
beginning one year post-issuance, and the report must be submitted not 
less than ninety days following the end of a given year. Submission of 
this information is in service of an adaptive management framework 
allowing NMFS to make appropriate modifications to mitigation and/or 
monitoring strategies, as necessary, during the five-year period of 
validity for these regulations.
    NMFS has established a formal incidental take reporting system, the 
Protected Species Incidental Take (PSIT) database, requiring that 
incidental takes of protected species be reported within 48 hours of 
the occurrence. The PSIT generates automated messages to NMFS 
leadership and other relevant staff, alerting them to the event and to 
the fact that updated information describing the circumstances of the 
event has been inputted to the database. The PSIT and CS reports 
represent not only valuable real-time reporting and information 
dissemination tools, but also serve as an archive of information that 
may be mined in the future to study why takes occur by species, gear, 
region, etc.
    SWFSC will also collect and report all necessary data, to the 
extent practicable given the primacy of human safety and the well-being 
of captured or entangled marine mammals, to facilitate serious injury 
(SI) determinations for marine mammals that are released alive. SWFSC 
will require that the CS complete data forms (already developed and 
used by commercial fisheries observer programs) and address 
supplemental questions, both of which have been developed to aid in SI 
determinations. SWFSC understands the critical need to provide as much 
relevant information as possible about marine mammal interactions to 
inform decisions regarding SI determinations. In addition, the SWFSC 
will perform all necessary reporting to ensure that any incidental M/SI 
is incorporated as appropriate into relevant SARs.

Adaptive Management

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

Changes to the Proposed Regulations

    As a result of clarifying discussions with SWFSC, we made certain 
changes to the proposed regulations as described here. These changes 
are considered minor and do not affect any of our preliminary 
determinations.

Specified Geographical Region

    We clarify that the California Current Ecosystem specified 
geographical region extends outside of the U.S. Exclusive Economic Zone 
(EEZ), from the Mexican EEZ (not including Mexican territorial waters) 
north into the Canadian EEZ (not including Canadian territorial 
waters). We further clarify that the Eastern Tropical Pacific specified 
geographical region extends into the EEZs of the various ETP nations 
(not including the territorial waters of ETP nations). The MMPA's 
authority does not extend into foreign territorial waters.

Mitigation

    We have eliminated reference to specific operational protocols 
(e.g., tow distance, soak duration; 219.5(b)(6)) in the regulations. 
Those protocols, as described in the preamble as well as in the 
proposed regulations, were intended to acknowledge that certain SWFSC 
operational protocols that are defined elements of survey design (i.e., 
not specified for purposes of mitigation) have the added benefit of 
reducing the likelihood of marine mammal interactions (e.g., limiting 
tow or soak durations results in a shorter period of time when gear is 
in the water). However, it is not our intent to restrict SWFSC ability 
to design new or alter existing survey protocols during the period of 
validity of these regulations.

Monitoring

    We have removed the requirement to log passive acoustic data prior 
to midwater trawling in the California Current (219.6(b) in the 
proposed regulations). Inclusion of this requirement stemmed from a 
misunderstanding of certain language in SWFSC's request for 
authorization and would require substantial effort for uncertain 
benefit. In addition, we made the following minor changes:
     Added a stipulation relating to coordination of training 
efforts with NMFS' Northwest Fisheries Science Center (219.6 (d)(3))
     Removed requirement for SWFSC to submit reports for each 
survey leg or cruise (previously 219.6(g)(2)). We believe that the 
incident-specific NMFS PSIT reporting in concert with required annual 
reporting is sufficient.
     Clarified that SWFSC must submit a revised annual report 
following resolution of any comments on the draft report; changed the 
reporting period to one-year period rather than calendar year; 
clarified that pro-rated estimates of actual take relating to use of 
active acoustic sources must be submitted; and added requirements to 
report on waiver of move-on rule due to presence of five or fewer 
California sea lions when there is a relevant interaction, the ongoing 
practice of spent bait discard, and annual trainings and coordination.
     Requirements relating to reporting of injured or dead 
marine mammals have been revised to clarify that SWFSC may make an 
immediate decision regarding continuation of research activity in the 
event that such activity results in a prohibited take. The decision 
will be subject to concurrence from OPR.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

[[Page 59004]]

Endangered Species Act (ESA)

    There are multiple marine mammal species listed under the ESA with 
confirmed or possible occurrence in the specified geographical regions. 
The authorization of incidental take pursuant to the SWFSC's specified 
activity would not affect any designated critical habitat. OPR 
requested initiation of consultation with NMFS' West Coast Regional 
Office (WCRO) under section 7 of the ESA on the promulgation of five-
year regulations and the subsequent issuance of LOAs to SWFSC under 
section 101(a)(5)(A) of the MMPA.
    On August 31, 2015, the WCRO issued a biological opinion to OPR and 
to the SWFSC (concerning the conduct of the specified activities) which 
concluded that the issuance of the authorizations is not likely to 
jeopardize the continued existence of any listed species and is not 
likely to adversely affect any listed marine mammal species. The 
opinion also concluded that the issuance of the authorizations would 
not affect any designated critical habitat.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), SWFSC 
prepared an Environmental Assessment (EA) to consider the direct, 
indirect and cumulative effects to the human environment resulting from 
the described research activities. OPR made SWFSC's EA available to the 
public for review and comment, in relation to its suitability for 
adoption by OPR in order to assess the impacts to the human environment 
of issuance of regulations and subsequent Letters of Authorization to 
SWFSC. Also in compliance with NEPA and the CEQ regulations, as well as 
NOAA Administrative Order 216-6, OPR has reviewed SWFSC's EA, 
determined it to be sufficient, and adopted that EA and signed a 
Finding of No Significant Impact (FONSI) on August 31, 2015. SWFSC's EA 
and OPR's FONSI for this action may be found on the Internet at 
www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

Classification

    It has been determined that this rule is not significant under 
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 that this rule will not have a significant economic 
impact on a substantial number of small entities. The factual basis for 
this certification was published with the proposed rule and is not 
repeated here. No comments were received regarding the economic impact 
of this final rule. As a result, a final regulatory flexibility 
analysis is not required and one was not prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection-of-information 
displays a currently valid OMB control number. This rule contains 
collection-of-information requirements subject to the requirements of 
the PRA. These collection-of-information requirements have been 
approved by OMB under control number 0648-0151 and include applications 
for regulations, subsequent LOAs, and reports.

List of Subjects in 50 CFR Part 219

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

    Dated: September 22, 2015.
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 Chapter 
II, Subchapter C, by adding part 219 to read as follows:

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

Subpart A--Taking Marine Mammals Incidental to Southwest Fisheries 
Science Center Fisheries Research in the California Current
Sec.
219.1 Specified activity and specified geographical region.
219.2 Effective dates.
219.3 Permissible methods of taking.
219.4 Prohibitions.
219.5 Mitigation requirements.
219.6 Requirements for monitoring and reporting.
219.7 Letters of Authorization.
219.8 Renewals and modifications of Letters of Authorization.
219.9 [Reserved]
219.10 [Reserved]
Subpart B--Taking Marine Mammals Incidental to Southwest Fisheries 
Science Center Fisheries Research in the Eastern Tropical Pacific
Sec.
219.11 Specified activity and specified geographical region.
219.12 Effective dates.
219.13 Permissible methods of taking.
219.14 Prohibitions.
219.15 Mitigation requirements.
219.16 Requirements for monitoring and reporting.
219.17 Letters of Authorization.
219.18 Renewals and modifications of Letters of Authorization.
219.19 [Reserved]
219.20 [Reserved]
Subpart C--Taking Marine Mammals Incidental to Southwest Fisheries 
Science Center Fisheries Research in the Antarctic
Sec.
219.21 Specified activity and specified geographical region.
219.22 Effective dates.
219.23 Permissible methods of taking.
219.24 Prohibitions.
219.25 Mitigation requirements.
219.26 Requirements for monitoring and reporting.
219.27 Letters of Authorization.
219.28 Renewals and modifications of Letters of Authorization.
219.29 [Reserved]
219.30 [Reserved]

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

Subpart A--Taking Marine Mammals Incidental to Southwest Fisheries 
Science Center Fisheries Research in the California Current


Sec.  219.1  Specified activity and specified geographical region.

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


Sec.  219.2  Effective dates.

    Regulations in this subpart are effective October 30, 2015, through 
October 30, 2020.


Sec.  219.3  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.  216.106 and Sec.  219.7 of 
this chapter, the Holder of the LOA (hereinafter ``SWFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  219.1(b)

[[Page 59005]]

of this chapter, provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate LOA.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  219.1(a) of this chapter is limited to the 
indicated number of takes on an annual basis (by Level B harassment) or 
over the five-year period of validity of these regulations (by 
mortality) of the following species:
    (1) Level B harassment:
    (i) Cetaceans:
    (A) Gray whale (Eschrichtius robustus)--346;
    (B) Humpback whale (Megaptera novaeangliae)--14;
    (C) Minke whale (Balaenoptera acutorostrata)--13;
    (D) Sei whale (Balaenoptera borealis)--1;
    (E) Fin whale (Balaenoptera physalus)--33;
    (F) Blue whale (Balaenoptera musculus)--24;
    (G) Sperm whale (Physeter macrocephalus)--65;
    (H) Pygmy or dwarf sperm whale (Kogia spp.)--42;
    (I) Cuvier's beaked whale (Ziphius cavirostris)--146;
    (J) Baird's beaked whale (Berardius bairdii)--34;
    (K) Hubbs', Blainville's, ginkgo-toothed, Perrin's, lesser, or 
Stejneger's beaked whales (Mesoplodon spp.)--40;
    (L) Bottlenose dolphin (Tursiops truncatus)--32;
    (M) Striped dolphin (Stenella coeruleoalba)--301;
    (N) Long-beaked common dolphin (Delphinis capensis)--348;
    (O) Short-beaked common dolphin (Delphinis delphis)--5,592;
    (P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--378;
    (Q) Northern right whale dolphin (Lissodelphis borealis)--176;
    (R) Risso's dolphin (Grampus griseus)--188;
    (S) Killer whale (Orcinus orca)--13;
    (T) Short-finned pilot whale (Globicephala macrorhynchus)--12;
    (U) Harbor porpoise (Phocoena phocoena)--682; and
    (V) Dall's porpoise (Phocoenoides dalli)--1,365.
    (ii) Pinnipeds:
    (A) Guadalupe fur seal (Arctocephalus philippii townsendi)--134;
    (B) Northern fur seal (Callorhinus ursinus), California stock--236;
    (C) Northern fur seal, Pribilof Islands/Eastern Pacific stock--
11,555;
    (D) California sea lion (Zalophus californianus)--4,302;
    (E) Steller sea lion (Eumetopias jubatus)--1,055;
    (F) Harbor seal (Phoca vitulina)--910; and
    (G) Northern elephant seal (Mirounga angustirostris)--4,743.
    (2) Mortality (midwater trawl gear only):
    (i) Cetaceans:
    (A) Bottlenose dolphin (California, Oregon, and Washington offshore 
stock)--8;
    (B) Bottlenose dolphin (California coastal stock)--3;
    (C) Striped dolphin--11;
    (D) Long-beaked common dolphin--11;
    (E) Short-beaked common dolphin--11;
    (F) Pacific white-sided dolphin--35;
    (G) Northern right whale dolphin--10;
    (H) Risso's dolphin--11;
    (I) Harbor porpoise--5;
    (J) Dall's porpoise--5;
    (K) Unidentified cetacean (Family Delphinidae or Family 
Phocoenidae)--1.
    (ii) Pinnipeds:
    (A) Northern fur seal--5;
    (B) California sea lion--20;
    (C) Steller sea lion--9;
    (D) Harbor seal--9;
    (E) Northern elephant seal--5; and
    (F) Unidentified pinniped--1.
    (3) Mortality (pelagic longline gear only):
    (i) Cetaceans:
    (A) Pygmy or dwarf sperm whale--1;
    (B) Bottlenose dolphin--1;
    (C) Striped dolphin--1;
    (D) Long-beaked common dolphin--1;
    (E) Short-beaked common dolphin--1;
    (F) Risso's dolphin--1; and
    (G) Short-finned pilot whale--1.
    (ii) Pinnipeds:
    (A) California sea lion--5;
    (B) Steller sea lion--1; and
    (C) Unidentified pinniped--1.


Sec.  219.4  Prohibitions.

    Notwithstanding takings contemplated in Sec.  219.1 of this chapter 
and authorized by a LOA issued under Sec. Sec.  216.106 and 219.7 of 
this chapter, no person in connection with the activities described in 
Sec.  219.1 of this chapter may:
    (a) Take any marine mammal not specified in Sec.  219.3(b) of this 
chapter;
    (b) Take any marine mammal specified in Sec.  219.3(b) of this 
chapter in any manner other than as specified;
    (c) Take a marine mammal specified in Sec.  219.3(b) of this 
chapter if NMFS determines such taking results in more than a 
negligible impact on the species or stocks of such marine mammal;
    (d) Take a marine mammal specified in Sec.  219.3(b) of this 
chapter if NMFS determines such taking results in an unmitigable 
adverse impact on the species or stock of such marine mammal for taking 
for subsistence uses; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
and 219.7 of this chapter.


Sec.  219.5  Mitigation requirements.

    When conducting the activities identified in Sec.  219.1(a) of this 
chapter, the mitigation measures contained in any LOA issued under 
Sec. Sec.  216.106 and 219.7 of this chapter must be implemented. These 
mitigation measures shall include but are not limited to:
    (a) General conditions:
    (1) SWFSC shall take all necessary measures to coordinate and 
communicate in advance of each specific survey with the National 
Oceanic and Atmospheric Administration's (NOAA) Office of Marine and 
Aviation Operations (OMAO) or other relevant parties on non-NOAA 
platforms to ensure that all mitigation measures and monitoring 
requirements described herein, as well as the specific manner of 
implementation and relevant event-contingent decision-making processes, 
are clearly understood and agreed upon.
    (2) SWFSC shall coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (Commanding Officer/
master or designee(s), as appropriate) and scientific party in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (3) SWFSC shall coordinate as necessary on a daily basis during 
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
    (4) When deploying any type of sampling gear at sea, SWFSC shall at 
all times monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    (5) SWFSC shall implement handling and/or disentanglement protocols 
as specified in guidance provided to SWFSC survey personnel.
    (b) Midwater trawl survey protocols:
    (1) SWFSC shall conduct trawl operations as soon as is practicable 
upon arrival at the sampling station.
    (2) SWFSC shall initiate marine mammal watches (visual observation) 
no less than thirty minutes prior to sampling. Marine mammal watches 
shall be conducted by scanning the surrounding waters with the naked 
eye

[[Page 59006]]

and rangefinding binoculars (or monocular). During nighttime 
operations, visual observation shall be conducted using the naked eye 
and available vessel lighting.
    (3) SWFSC shall implement the move-on rule. If one or more marine 
mammals are observed within 1 nm of the planned location in the thirty 
minutes before setting the trawl gear, SWFSC shall transit to a 
different section of the sampling area to maintain a minimum set 
distance of 1 nm from the observed marine mammals. If, after moving on, 
marine mammals remain within 1 nm, SWFSC may decide to move again or to 
skip the station. SWFSC may use best professional judgment in making 
this decision but may not elect to conduct midwater trawl survey 
activity when animals remain within the 1-nm zone.
    (4) SWFSC shall maintain visual monitoring effort during the entire 
period of time that midwater trawl gear is in the water (i.e., 
throughout gear deployment, fishing, and retrieval). If marine mammals 
are sighted before the gear is fully removed from the water, SWFSC 
shall take the most appropriate action to avoid marine mammal 
interaction. SWFSC may use best professional judgment in making this 
decision.
    (5) If trawling operations have been suspended because of the 
presence of marine mammals, SWFSC may resume trawl operations when 
practicable only when the animals are believed to have departed the 1 
nm area. SWFSC may use best professional judgment in making this 
determination.
    (6) SWFSC shall implement standard survey protocols to minimize 
potential for marine mammal interactions, including maximum tow 
durations at target depth and maximum tow distance, and shall carefully 
empty the trawl as quickly as possible upon retrieval. Trawl nets must 
be cleaned prior to deployment.
    (7) SWFSC must install and use a marine mammal excluder device at 
all times when the Nordic 264 trawl net or other net for which the 
device is appropriate is used.
    (8) SWFSC must install and use acoustic deterrent devices whenever 
any midwater trawl net is used, with two to four devices placed along 
the footrope and/or headrope of the net. SWFSC must ensure that the 
devices are operating properly before deploying the net.
    (c) Pelagic longline survey protocols:
    (1) SWFSC shall deploy longline gear as soon as is practicable upon 
arrival at the sampling station.
    (2) SWFSC shall initiate marine mammal watches (visual observation) 
no less than thirty minutes prior to both deployment and retrieval of 
the 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) SWFSC shall implement the move-on rule. If one or more marine 
mammals are observed within 1 nm of the planned location in the thirty 
minutes before gear deployment, SWFSC shall transit to a different 
section of the sampling area to maintain a minimum set distance of 1 nm 
from the observed marine mammals. If, after moving on, marine mammals 
remain within 1 nm, SWFSC may decide to move again or to skip the 
station. SWFSC may use best professional judgment in making this 
decision but may not elect to conduct pelagic longline survey activity 
when animals remain within the 1-nm zone. Implementation of the move-on 
rule is not required upon observation of five or fewer California sea 
lions.
    (4) SWFSC shall maintain visual monitoring effort during the entire 
period of gear deployment and retrieval. If marine mammals are sighted 
before the gear is fully deployed or retrieved, SWFSC shall take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, SWFSC may resume such 
operations when practicable only when the animals are believed to have 
departed the 1 nm area. SWFSC may use best professional judgment in 
making this decision.
    (6) SWFSC shall implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming.


Sec.  219.6  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) Dedicated marine mammal visual monitoring, conducted by trained 
SWFSC personnel with no other responsibilities during the monitoring 
period, shall occur:
    (i) For a minimum of thirty minutes prior to deployment of midwater 
trawl and pelagic longline gear;
    (ii) Throughout deployment of gear and active fishing of midwater 
trawl gear;
    (iii) For a minimum of thirty minutes prior to retrieval of pelagic 
longline gear; and
    (iv) 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.
    (b) Marine mammal excluder device (MMED)--SWFSC shall conduct an 
evaluation of the feasibility of MMED development for the modified-Cobb 
midwater trawl net.
    (c) Analysis of bycatch patterns--SWFSC shall conduct an analysis 
of past bycatch patterns in order to better understand what factors 
might increase the likelihood of incidental take in research survey 
gear. This shall include an analysis of research trawl data for any 
link between trawl variables and observed marine mammal bycatch, as 
well as a review of historical fisheries research data to determine 
whether sufficient data exist for similar analysis.
    (d) Training:
    (1) SWFSC must conduct annual training for all chief scientists and 
other personnel who may be responsible for conducting dedicated marine 
mammal visual observations to explain mitigation measures and 
monitoring and reporting requirements, mitigation and monitoring 
protocols, marine mammal identification, completion of datasheets, and 
use of equipment. SWFSC may determine the agenda for these trainings.
    (2) SWFSC shall also dedicate a portion of training to discussion 
of best professional judgment, including use in any incidents of marine 
mammal interaction and instructive examples where use of best 
professional judgment was determined to be successful or unsuccessful.
    (3) SWFSC shall coordinate with NMFS' Northwest Fisheries Science 
Center (NWFSC) regarding surveys conducted in the California Current 
Ecosystem, such that training and guidance related to handling 
procedures and data collection is consistent.
    (e) Handling procedures and data collection:
    (1) SWFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard procedures will be subject to approval by NMFS' Office of 
Protected Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, SWFSC shall collect necessary data to 
facilitate a serious injury determination.

[[Page 59007]]

    (3) SWFSC shall provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring an individual aboard a vessel, 
assess the level of consciousness, remove fishing gear, return an 
individual to water, and log activities pertaining to the interaction.
    (4) SWFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. SWFSC shall also answer a standard 
series of supplemental questions regarding the details of any marine 
mammal interaction.
    (f) Reporting:
    (1) SWFSC shall report all incidents of marine mammal interaction 
to NMFS' Protected Species Incidental Take database within 48 hours of 
occurrence, and shall provide supplemental information to OPR upon 
request. Information related to marine mammal interaction (animal 
captured or entangled in research gear) must include details of survey 
effort, full descriptions of any observations of the animals, the 
context (vessel and conditions), decisions made, and rationale for 
decisions made in vessel and gear handling.
    (2) Annual reporting:
    (i) SWFSC shall submit an annual summary report to OPR not later 
than ninety days following the end of a given year. SWFSC shall provide 
a final report within thirty days following resolution of comments on 
the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
SX90 (or equivalent sources) were predominant and associated pro-rated 
estimates of actual take;
    (B) Summary information regarding use of all longline (including 
bottom and vertical lines) and trawl (including bottom trawl) gear, 
including number of sets, hook hours, tows, etc., specific to each 
gear;
    (C) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event, descriptions of any mitigation 
procedures implemented or not implemented and why, and, for 
interactions due to use of pelagic longline, whether the move-on rule 
was waived due to the presence of five or fewer California sea lions;
    (D) A written evaluation of the effectiveness of SWFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any, and an assessment of the 
practice of discarding spent bait relative to interactions with pelagic 
longline, if any;
    (E) Final outcome of serious injury determinations for all 
incidents of marine mammal interactions where the animal(s) were 
released alive;
    (F) Updates as appropriate regarding the development/implementation 
of MMEDs and analysis of bycatch patterns; and
    (G) A summary of all relevant training provided by SWFSC and any 
coordination with NWFSC or NMFS' West Coast Regional Office.
    (g) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in Sec.  
219.1(a) of this chapter clearly causes the take of a marine mammal in 
a prohibited manner, SWFSC 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 SWFSC 
Director (or designee). The incident must be reported immediately to 
OPR and the West Coast Regional Stranding Coordinator, NMFS. OPR will 
review the circumstances of the prohibited take and work with SWFSC to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The immediate 
decision made by SWFSC regarding continuation of the specified activity 
is subject to OPR concurrence. The report must include the following 
information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s).
    (2) In the event that SWFSC 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), SWFSC shall immediately report the incident to OPR 
and the West Coast Regional Stranding Coordinator, NMFS. The report 
must include the information identified in Sec.  219.6(g)(1) of this 
section. Activities may continue while OPR reviews the circumstances of 
the incident. OPR will work with SWFSC to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (3) In the event that SWFSC 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.  219.1(a) of this chapter 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), SWFSC shall report the incident to 
OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 
hours of the discovery. SWFSC shall provide photographs or video 
footage or other documentation of the stranded animal sighting to OPR.


Sec.  219.7  Letters of Authorization.

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


Sec.  219.8  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 and 219.7 of this 
chapter for the activity identified in Sec.  219.1(a) of this chapter 
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

[[Page 59008]]

anticipated impacts, are the same as those described and analyzed for 
these regulations (excluding changes made pursuant to the adaptive 
management provision in Sec.  219.8(c)(1) of this chapter), 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 Sec.  219.8(c)(1) of this chapter) 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 and 219.7 of this 
chapter for the activity identified in Sec.  219.1(a) of this chapter 
may be modified by OPR under the following circumstances:
    (1) Adaptive Management--OPR may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with SWFSC regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from SWFSC's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) Emergencies--If OPR determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec.  219.2(b) of this chapter, an LOA may 
be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within thirty days of 
the action.


Sec.  219.9  [Reserved]


Sec.  219.10  [Reserved]

Subpart B--Taking Marine Mammals Incidental to Southwest Fisheries 
Science Center Fisheries Research in the Eastern Tropical Pacific


Sec.  219.11  Specified activity and specified geographical region.

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


Sec.  219.12  Effective dates.

    Regulations in this subpart are effective October 30, 2015, through 
October 30, 2020.


Sec.  219.13  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. Sec.  216.106 and 219.17 of 
this chapter, the Holder of the LOA (hereinafter ``SWFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  219.11(b) of this chapter, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate LOA.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  219.11(a) of this chapter is limited to the 
indicated number of takes on an annual basis (by Level B harassment) or 
over the five-year period of validity of these regulations (by 
mortality) of the following species:
    (1) Level B harassment:
    (i) Cetaceans:
    (A) Humpback whale (Megaptera novaeangliae)--1;
    (B) Bryde's whale (Balaenoptera edeni)--4;
    (C) Blue whale (Balaenoptera musculus)--2;
    (D) Sperm whale (Physeter macrocephalus)--4;
    (E) Dwarf sperm whale (Kogia sima)--14;
    (F) Cuvier's beaked whale (Ziphius cavirostris)--24;
    (G) Longman's beaked whale (Indopacetus pacificus)--1;
    (H) Blainville's, ginkgo-toothed, or lesser beaked whales 
(Mesoplodon spp.)--30;
    (I) Rough-toothed dolphin (Steno bredanensis)--45;
    (J) Bottlenose dolphin (Tursiops truncatus)--139;
    (K) Striped dolphin (Stenella coeruleoalba)--401;
    (L) Pantropical spotted dolphin (Stenella attenuata)--1,088;
    (M) Spinner dolphin (Stenella longirostris)--442;
    (N) Long-beaked common dolphin (Delphinis capensis)--173;
    (O) Short-beaked common dolphin (Delphinis delphis)--1,300;
    (P) Fraser's dolphin (Lagenodelphis hosei)--121;
    (Q) Dusky dolphin (Lagenorhynchus obscurus)--18;
    (R) Risso's dolphin (Grampus griseus)--46;
    (S) Melon-headed whale (Peponocephala electra)--19;
    (T) Pygmy killer whale (Feresa attenuata)--17;
    (U) False killer whale (Pseudorca crassidens)--17;
    (V) Killer whale (Orcinus orca)--3; and
    (W) Short-finned pilot whale (Globicephala macrorhynchus)--723.
    (ii) Pinnipeds:
    (A) Guadalupe fur seal (Arctocephalus philippii townsendi)--66;
    (B) California sea lion (Zalophus californianus)--1,442;
    (C) South American sea lion (Otaria byronia)--1,442; and
    (D) Northern elephant seal (Mirounga angustirostris)--3,248.
    (2) Mortality (pelagic longline gear only):
    (i) Cetaceans:
    (A) Dwarf sperm whale--1;
    (B) Rough-toothed dolphin--1;
    (C) Bottlenose dolphin--1;
    (D) Striped dolphin--1;
    (E) Pantropical spotted dolphin--1;
    (F) Long-beaked common dolphin--1;
    (G) Short-beaked common dolphin--1;
    (H) Risso's dolphin--1;
    (I) False killer whale--1; and
    (J) Short-finned pilot whale--1.
    (ii) Pinnipeds:
    (A) California sea lion--5;
    (B) South American sea lion--5; and
    (C) Unidentified pinniped--1.


Sec.  219.14  Prohibitions.

    Notwithstanding takings contemplated in Sec.  219.11 of this 
chapter and authorized by a LOA issued under Sec. Sec.  216.106 and 
219.17 of this chapter, no person in connection with the activities 
described in Sec.  219.11 of this chapter may:

[[Page 59009]]

    (a) Take any marine mammal not specified in Sec.  219.13(b) of this 
chapter;
    (b) Take any marine mammal specified in Sec.  219.13(b) of this 
chapter in any manner other than as specified;
    (c) Take a marine mammal specified in Sec.  219.13(b) of this 
chapter if NMFS determines such taking results in more than a 
negligible impact on the species or stocks of such marine mammal;
    (d) Take a marine mammal specified in Sec.  219.13(b) of this 
chapter if NMFS determines such taking results in an unmitigable 
adverse impact on the species or stock of such marine mammal for taking 
for subsistence uses; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
and 219.17 of this chapter.


Sec.  219.15  Mitigation requirements.

    When conducting the activities identified in Sec.  219.11(a) of 
this chapter, the mitigation measures contained in any LOA issued under 
Sec. Sec.  216.106 and 219.17 of this chapter must be implemented. 
These mitigation measures shall include but are not limited to:
    (a) General conditions:
    (1) SWFSC shall take all necessary measures to coordinate and 
communicate in advance of each specific survey with the National 
Oceanic and Atmospheric Administration's (NOAA) Office of Marine and 
Aviation Operations (OMAO) or other relevant parties on non-NOAA 
platforms to ensure that all mitigation measures and monitoring 
requirements described herein, as well as the specific manner of 
implementation and relevant event-contingent decision-making processes, 
are clearly understood and agreed upon.
    (2) SWFSC shall coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (Commanding Officer/
master or designee(s), as appropriate) and scientific party in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (3) SWFSC shall coordinate as necessary on a daily basis during 
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
    (4) When deploying any type of sampling gear at sea, SWFSC shall at 
all times monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    (5) SWFSC shall implement handling and/or disentanglement protocols 
as specified in guidance provided to SWFSC survey personnel.
    (b) Pelagic longline survey protocols:
    (1) SWFSC shall deploy longline gear as soon as is practicable upon 
arrival at the sampling station.
    (2) SWFSC shall initiate marine mammal watches (visual observation) 
no less than thirty minutes prior to both deployment and retrieval of 
the 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) SWFSC shall implement the move-on rule. If one or more marine 
mammals are observed within 1 nm of the planned location in the thirty 
minutes before gear deployment, SWFSC shall transit to a different 
section of the sampling area to maintain a minimum set distance of 1 nm 
from the observed marine mammals. If, after moving on, marine mammals 
remain within 1 nm, SWFSC may decide to move again or to skip the 
station. SWFSC may use best professional judgment in making this 
decision but may not elect to conduct pelagic longline survey activity 
when animals remain within the 1-nm zone.
    (4) SWFSC shall maintain visual monitoring effort during the entire 
period of gear deployment and retrieval. If marine mammals are sighted 
before the gear is fully deployed or retrieved, SWFSC shall take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, SWFSC may resume such 
operations when practicable only when the animals are believed to have 
departed the 1 nm area. SWFSC may use best professional judgment in 
making this determination.
    (6) SWFSC shall implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming.


Sec.  219.16  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) Dedicated marine mammal visual monitoring, conducted by trained 
SWFSC personnel with no other responsibilities during the monitoring 
period, shall occur:
    (i) For a minimum of thirty minutes prior to deployment of pelagic 
longline gear;
    (ii) Throughout deployment of gear;
    (iii) For a minimum of thirty minutes prior to retrieval of pelagic 
longline gear; and
    (iv) 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.
    (b) Training:
    (1) SWFSC must conduct annual training for all chief scientists and 
other personnel who may be responsible for conducting dedicated marine 
mammal visual observations to explain mitigation measures and 
monitoring and reporting requirements, mitigation and monitoring 
protocols, marine mammal identification, completion of datasheets, and 
use of equipment. SWFSC may determine the agenda for these trainings.
    (2) SWFSC shall also dedicate a portion of training to discussion 
of best professional judgment, including use in any incidents of marine 
mammal interaction and instructive examples where use of best 
professional judgment was determined to be successful or unsuccessful.
    (c) Handling procedures and data collection:
    (1) SWFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard procedures will be subject to approval by NMFS' Office of 
Protected Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, SWFSC shall collect necessary data to 
facilitate a serious injury determination.
    (3) SWFSC shall provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring an individual aboard a vessel, 
assess the level of consciousness, remove fishing gear, return an 
individual to water, and log activities pertaining to the interaction.
    (4) SWFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. SWFSC shall also answer a standard 
series of supplemental questions regarding the details of any marine 
mammal interaction.
    (d) Reporting:

[[Page 59010]]

    (1) SWFSC shall report all incidents of marine mammal interaction 
to NMFS' Protected Species Incidental Take database within 48 hours of 
occurrence, and shall provide supplemental information to OPR upon 
request. Information related to marine mammal interaction (animal 
captured or entangled in research gear) must include details of survey 
effort, full descriptions of any observations of the animals, the 
context (vessel and conditions), decisions made, and rationale for 
decisions made in vessel and gear handling.
    (2) Annual reporting:
    (i) SWFSC shall submit an annual summary report to OPR not later 
than ninety days following the end of a given year. SWFSC shall provide 
a final report within thirty days following resolution of comments on 
the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
SX90 (or equivalent sources) were predominant and associated pro-rated 
estimates of actual take;
    (B) Summary information regarding use of all longline gear, 
including number of sets, hook hours, etc.;
    (C) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why;
    (D) A written evaluation of the effectiveness of SWFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any; and an assessment of the 
practice of discarding spent bait relative to interactions with pelagic 
longline, if any;
    (E) Final outcome of serious injury determinations for all 
incidents of marine mammal interactions where the animal(s) were 
released alive; and
    (F) A summary of all relevant training provided by SWFSC.
    (e) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in Sec.  
219.1(a) of this chapter clearly causes the take of a marine mammal in 
a prohibited manner, SWFSC 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 SWFSC 
Director (or designee). The incident must be reported immediately to 
OPR. OPR will review the circumstances of the prohibited take and work 
with SWFSC to determine what measures are necessary to minimize the 
likelihood of further prohibited take and ensure MMPA compliance. The 
immediate decision made by SWFSC regarding continuation of the 
specified activity is subject to OPR concurrence. The report must 
include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s).
    (2) In the event that SWFSC 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), SWFSC shall immediately report the incident to OPR. 
The report must include the same information identified in Sec.  
219.16(e)(1) of this section. Activities may continue while OPR reviews 
the circumstances of the incident. OPR will work with SWFSC to 
determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    (3) In the event that SWFSC 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.  219.11(a) of this chapter 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), SWFSC shall report the incident to 
OPR within 24 hours of the discovery. SWFSC shall provide photographs 
or video footage or other documentation of the stranded animal sighting 
to OPR.


Sec.  219.17  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, SWFSC must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, SWFSC may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, SWFSC must apply 
for and obtain a modification of the LOA as described in Sec.  219.18 
of this chapter.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  219.18  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 and 219.17 of this 
chapter for the activity identified in Sec.  219.11(a) of this chapter 
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 Sec.  
219.18(c)(1) of this chapter), 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 Sec.  219.18(c)(1) of this chapter) 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 and 219.17 of this 
chapter for the activity identified in Sec.  219.11(a) of this chapter 
may be modified by OPR under the following circumstances:

[[Page 59011]]

    (1) Adaptive Management--OPR may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with SWFSC regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from SWFSC's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) Emergencies--If OPR determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec.  219.12(b) of this chapter, an LOA may 
be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within thirty days of 
the action.


Sec.  219.19  [Reserved]


Sec.  219.20  [Reserved]

Subpart C--Taking Marine Mammals Incidental to Southwest Fisheries 
Science Center Fisheries Research in the Antarctic


Sec.  219.21  Specified activity and specified geographical region.

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


Sec.  219.22  Effective dates.

    Regulations in this subpart are effective October 30, 2015, through 
October 30, 2020.


Sec.  219.23  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. Sec.  216.106 and 219.27 of 
this chapter, the Holder of the LOA (hereinafter ``SWFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  219.21(b) of this chapter, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate LOA.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  219.21(a) of this chapter is limited to the 
indicated number of takes on an annual basis of the following species 
and is limited to Level B harassment:
    (1) Cetaceans:
    (i) Southern right whale (Eubalaena australis)--1;
    (ii) Humpback whale (Megaptera novaeangliae)--92;
    (iii) Antarctic minke whale (Balaenoptera bonaerensis)--6;
    (iv) Fin whale (Balaenoptera physalus)--114;
    (v) Sperm whale (Physeter macrocephalus)--3;
    (vi) Arnoux' beaked whale (Berardius arnuxii)--37;
    (vii) Southern bottlenose whale (Hyperoodon planifrons)--37;
    (viii) Hourglass dolphin (Lagenorhynchus cruciger)--12;
    (ix) Killer whale (Orcinus orca)--11;
    (x) Long-finned pilot whale (Globicephala melas)--43; and
    (xi) Spectacled porpoise (Phocoena dioptrica)--12.
    (2) Pinnipeds:
    (i) Antarctic fur seal (Arctocephalus philippii townsendi)--553;
    (ii) Southern elephant seal (Mirounga leonina)--6;
    (iii) Weddell seal (Leptonychotes weddellii)--4;
    (iv) Crabeater seal (Lobodon carcinophaga)--7; and
    (v) Leopard seal (Hydrurga leptonyx)--5.


Sec.  219.24  Prohibitions.

    Notwithstanding takings contemplated in Sec.  219.21 of this 
chapter and authorized by a LOA issued under Sec. Sec.  216.106 and 
219.27 of this chapter, no person in connection with the activities 
described in Sec.  219.21 of this chapter may:
    (a) Take any marine mammal not specified in Sec.  219.23(b) of this 
chapter;
    (b) Take any marine mammal specified in Sec.  219.23(b) of this 
chapter in any manner other than as specified;
    (c) Take a marine mammal specified in Sec.  219.23(b) of this 
chapter if NMFS determines such taking results in more than a 
negligible impact on the species or stocks of such marine mammal;
    (d) Take a marine mammal specified in Sec.  219.23(b) of this 
chapter if NMFS determines such taking results in an unmitigable 
adverse impact on the species or stock of such marine mammal for taking 
for subsistence uses; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
and 219.27 of this chapter.


Sec.  219.25  Mitigation requirements.

    When conducting the activities identified in Sec.  219.21(a), the 
mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 and 219.27 of this chapter must be implemented. These 
mitigation measures shall include but are not limited to:
    (a) General conditions:
    (1) SWFSC shall take all necessary measures to coordinate and 
communicate in advance of each specific survey with the National 
Oceanic and Atmospheric Administration's (NOAA) Office of Marine and 
Aviation Operations (OMAO) or other relevant parties on non-NOAA 
platforms to ensure that all mitigation measures and monitoring 
requirements described herein, as well as the specific manner of 
implementation and relevant event-contingent decision-making processes, 
are clearly understood and agreed upon.
    (2) SWFSC shall coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (Commanding Officer/
master or designee(s), as appropriate) and scientific party in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (3) SWFSC shall coordinate as necessary on a daily basis during 
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
    (4) When deploying any type of sampling gear at sea, SWFSC shall at 
all times monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    (5) SWFSC shall implement handling and/or disentanglement protocols 
as specified in guidance provided to SWFSC survey personnel.

[[Page 59012]]

    (b) Trawl survey protocols--SWFSC shall conduct trawl operations as 
soon as is practicable upon arrival at the sampling station.


Sec.  219.26  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) 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.
    (2) SWFSC shall monitor any potential disturbance of pinnipeds on 
ice, paying particular attention to the distance at which different 
species of pinniped are disturbed. Disturbance shall be recorded 
according to a three-point scale representing increasing seal response 
to disturbance.
    (b) Training:
    (1) SWFSC must conduct annual training for all chief scientists and 
other personnel who may be responsible for conducting dedicated marine 
mammal visual observations to explain mitigation measures and 
monitoring and reporting requirements, mitigation and monitoring 
protocols, marine mammal identification, recording of count and 
disturbance observations, completion of datasheets, and use of 
equipment. SWFSC may determine the agenda for these trainings.
    (2) SWFSC shall also dedicate a portion of training to discussion 
of best professional judgment, including use in any incidents of marine 
mammal interaction and instructive examples where use of best 
professional judgment was determined to be successful or unsuccessful.
    (c) Handling procedures and data collection:
    (1) SWFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard procedures will be subject to approval by NMFS' Office of 
Protected Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, SWFSC shall collect necessary data to 
facilitate a serious injury determination.
    (3) SWFSC shall provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring an individual aboard a vessel, 
assess the level of consciousness, remove fishing gear, return an 
individual to water, and log activities pertaining to the interaction.
    (4) SWFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. SWFSC shall also answer a standard 
series of supplemental questions regarding the details of any marine 
mammal interaction.
    (d) Reporting:
    (1) SWFSC shall report all incidents of marine mammal interaction 
to NMFS' Protected Species Incidental Take database within 48 hours of 
occurrence, and shall provide supplemental information to OPR upon 
request. Information related to marine mammal interaction (animal 
captured or entangled in research gear) must include details of survey 
effort, full descriptions of any observations of the animals, the 
context (vessel and conditions), decisions made, and rationale for 
decisions made in vessel and gear handling.
    (2) Annual reporting:
    (i) SWFSC shall submit an annual summary report to OPR not later 
than ninety days following the end of a given year. SWFSC shall provide 
a final report within thirty days following resolution of comments on 
the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
SX90 (or equivalent sources) were predominant and associated pro-rated 
estimates of actual take;
    (B) Summary information regarding use of all trawl gear, including 
number of tows, etc.;
    (C) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why;
    (D) Summary information related to any on-ice disturbance of 
pinnipeds, including event-specific total counts of animals present, 
counts of reactions according to a three-point scale of response 
severity (1 = alert; 2 = movement; 3 = flight), and distance of closest 
approach;
    (E) A written evaluation of the effectiveness of SWFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any;
    (F) Final outcome of serious injury determinations for all 
incidents of marine mammal interactions where the animal(s) were 
released alive; and
    (G) A summary of all relevant training provided by SWFSC.
    (e) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in Sec.  
219.1(a) of this chapter clearly causes the take of a marine mammal in 
a prohibited manner, SWFSC 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 SWFSC 
Director (or designee). The incident must be reported immediately to 
OPR. OPR will review the circumstances of the prohibited take and work 
with SWFSC to determine what measures are necessary to minimize the 
likelihood of further prohibited take and ensure MMPA compliance. The 
immediate decision made by SWFSC regarding continuation of the 
specified activity is subject to OPR concurrence. The report must 
include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s).
    (2) In the event that SWFSC 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), SWFSC shall immediately report the incident to OPR. 
The report must include the same information identified in Sec.  
219.26(e)(1) of this section. Activities may continue while OPR reviews 
the circumstances of the incident. OPR will work with SWFSC to 
determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    (3) In the event that SWFSC 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.  219.21(a) of this chapter 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), SWFSC shall report the incident to 
OPR within 24 hours of the discovery. SWFSC shall provide photographs 
or video footage or other documentation of the stranded animal sighting 
to OPR.

[[Page 59013]]

Sec.  219.27  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, SWFSC must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, SWFSC may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, SWFSC must apply 
for and obtain a modification of the LOA as described in Sec.  219.28 
of this chapter.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  219.28  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 and 219.27 of this 
chapter for the activity identified in Sec.  219.21(a) of this chapter 
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 Sec.  
219.28(c)(1) of this chapter), 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 Sec.  219.28(c)(1) of this chapter) 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 and 219.27 of this 
chapter for the activity identified in Sec.  219.21(a) of this chapter 
may be modified by OPR under the following circumstances:
    (1) Adaptive Management--OPR may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with SWFSC regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from SWFSC's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) Emergencies--If OPR determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec.  219.22(b) of this chapter, an LOA may 
be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within thirty days of 
the action.


Sec.  219.29  [Reserved]


Sec.  219.30  [Reserved]

[FR Doc. 2015-24639 Filed 9-29-15; 8:45 am]
 BILLING CODE 3510-22-P