Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries Research, 53061-53090 [2016-18739]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 155 (Thursday, August 11, 2016)]
[Rules and Regulations]
[Pages 53061-53090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18739]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 150413360-6558-04]
RIN 0648-BF02


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Northeast 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 (hereinafter ``OPR'' or 
``we'' or ``our''), upon request of NMFS' Northeast Fisheries Science 
Center (NEFSC), hereby issues a regulation to govern the unintentional 
taking of marine mammals incidental to fisheries research conducted in 
a specified geographical region, over the course of five years. This 
regulation, which allows for the issuance of a Letter of Authorization 
for the incidental take of marine mammals during the described 
activities and specified timeframes, prescribes 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 September 12, 2016 through September 9, 2021.

ADDRESSES: A copy of the NEFSC's application, application addendum, and 
supporting documents, as well as a list of the references cited in this 
document, are available on the Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In case of problems accessing these 
documents, please call the contact listed below this section (see FOR 
FURTHER INFORMATION CONTACT).

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

SUPPLEMENTARY INFORMATION: 

Executive Summary

    This regulation, under the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1361 et seq.), establishes a framework for authorizing the take 
of marine mammals incidental to the NEFSC's fisheries research 
activities in a specified geographical region (the

[[Page 53062]]

Atlantic coast region which includes the Northeast U.S. Continental 
Shelf Large Marine Ecosystem (Northeast LME) and a portion of the 
Southeast U.S. Continental Shelf Large Marine Ecosystem (Southeast 
LME)).
    The NEFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. Depending on the research, the NEFSC's conducts the 
following types of research: (1) Fishery-independent research directed 
by NEFSC scientists and conducted onboard NOAA-owned and operated 
vessels or NOAA-chartered vessels; (2) fishery-independent research 
directed by cooperating scientists (other agencies, academic 
institutions, and independent researchers) conducted onboard non-NOAA 
vessels; and (3) fishery-dependent research conducted onboard 
commercial fishing vessels, with or without NOAA scientists onboard.

Purpose and Need for This Regulatory Action

    OPR received an application from the NEFSC requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. We anticipate take to occur in the Atlantic coast region by 
the following means: Level B harassment incidental to the use of active 
acoustic devices, visual disturbance of pinnipeds, and Level A 
harassment, serious injury, or mortality incidental to the use of 
fisheries research gear. This regulation is valid for five years from 
the date of issuance. Please see ``Background'' later in this document 
for definitions of harassment.
    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) 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. This regulation contains 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 Final Regulation

    The following provides a summary of some of the major provisions 
within this regulation for the NEFSC's fisheries research activities in 
the Atlantic coast region. We have determined that the NEFSC's 
adherence to the mitigation, monitoring, and reporting measures listed 
later in this regulation 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, 
bottom-contact trawl gear, pelagic or demersal longline gear, gillnets, 
fyke nets, pots, traps, and other gears;
     Required implementation of standard tow durations of not 
more than 30 minutes to reduce the likelihood of incidental take of 
marine mammals;
     Required implementation of the mitigation strategy known 
as the ``move-on rule,'' which incorporates best professional judgment, 
when necessary during trawl and longline operations;
     Required compliance with applicable vessel speed 
restrictions; and
     Required compliance with applicable and relevant take 
reduction plans for marine mammals.

Cost and Benefits

    This final rule, specific only to the NEFSC's fishery research 
activities, is not significant under Executive Order 12866, Regulatory 
Planning and Review.
Availability of Supporting Information
    We provided SUPPLEMENTARY INFORMATION in the NPRM for this activity 
in the Federal Register on July 9, 2015 (80 FR 39542), and two 
corrections to the proposed rulemaking in the Federal Register on 
August 6, 2015 (80 FR 46939), and August 17, 2015 (80 FR 49196). We did 
not reprint all of that information here in its entirety. Instead, we 
represent sections from the proposed rule in this document and provide 
either a summary of the material presented in the proposed rule or a 
note referencing the page(s) in the proposed rule where the public can 
find the information. We address any information that has changed since 
the proposed rule in this document. Additionally, this final rule 
contains a section that responds to the public comments submitted 
during the 30-day public comment period and the two extensions of the 
public comment period.
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 OPR 
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. OPR 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].
Summary of Request
    On December 17, 2014, OPR received an adequate and complete request 
from the NEFSC for authorization to take marine mammals incidental to 
fisheries research activities. We received an initial draft of the 
request on February 12, 2014, followed by revised drafts on September 
19 and October 1, 2014. On December 29, 2014 (79 FR 78065), we 
published a notice of receipt of the NEFSC's application in the Federal 
Register, requesting comments and information related to the NEFSC 
request for thirty days. All comments received were considered in 
development of the proposed rulemaking and are available on the

[[Page 53063]]

Internet at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm.
    The NEFSC proposes to conduct fisheries research using the 
following types of gear: Pelagic trawl gear used at various levels in 
the water column, bottom-contact trawl gear, pelagic and demersal 
longlines with multiple hooks, gillnets, fyke nets, dredges, pots, 
traps, and other gear. If a marine mammal interacts with gear deployed 
by the NEFSC, 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 could be for any particular 
interaction. Therefore, the NEFSC has pooled the estimated number of 
incidents of take expected to result from gear interactions, and we 
have assessed the potential impacts accordingly. The NEFSC 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 the shoreline may also occur, in some locations within the 
Atlantic coast region, as a result of visual disturbance from vessels 
conducting NEFSC research. This regulation is valid for five years from 
the date of issuance.
    The NEFSC conducts fisheries research surveys in the Atlantic coast 
region which spans the United States-Canadian border to Florida. This 
specified geographic region includes the following subareas: The Gulf 
of Maine, Georges Bank, Southern New England waters, the Mid-Atlantic 
Bight, and the coastal waters of northeast Florida. The NEFSC requested 
authorization to take individuals of 10 species by Level A harassment, 
serious injury, or mortality (hereafter referred to as M/SI + Level A) 
and of 19 species by Level B harassment.
Description of the Specified Activity

Overview

    The NEFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. NEFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. For 
other types of surveys, cooperating scientists may conduct fishery-
independent research onboard non-NOAA vessels. Finally, the NEFSC 
sponsors some fishery-dependent research conducted onboard commercial 
fishing vessels, with or without NEFSC scientists onboard.
    The NEFSC plans to administer and conduct approximately 48 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; bottom-contact trawl gear; pelagic and demersal 
longlines; gillnets; fyke nets; pots; traps; and other gear. The use of 
pelagic and bottom trawl nets, gillnets, fyke nets, and pelagic 
longline gears are likely to result in interactions 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 
aims at monitoring fish stock recruitment, abundance, survival and 
biological rates, geographic distribution of species and stocks, 
ecosystem process changes, and marine ecological research. The NEFSC is 
the research arm of NMFS in the greater Atlantic Ocean region of the 
United States. The NEFSC conducts research and provides scientific 
advice to manage fisheries and conserve protected species in Northeast 
and Southeast LMEs and provides scientific information to support the 
New England Fishery Management Council, the Mid-Atlantic Fishery 
Management Council, the Atlantic States Marine Fisheries Commission, 
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 issued regulation. Dates and duration of 
individual surveys are inherently uncertain, based on congressional 
funding levels for the NEFSC, weather conditions, or ship 
contingencies. In addition, the NEFSC designs the cooperative research 
program 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 undergo 
an annual competitive selection process to determine funding for 
projects based on proposals developed by many independent researchers 
and fishing industry participants. NEFSC survey activity occurs during 
most months of the year; however, most trawl surveys occur during the 
spring, summer, and fall. Longline surveys occur either biannually in 
the spring or annually in the summer and a small number of gillnet 
surveys occur annually in the summer.

Specified Geographical Region

    The NEFSC operates within the Atlantic coast region, which was 
described in detail in the notice of proposed rulemaking for this 
activity in the Federal Register on July 9, 2015 (80 FR 39544-39546). 
We refer the public to that document for further information.

Detailed Description of Activities

    We provided a detailed description of the NEFSC's planned research 
activities, gear types and active acoustic sound sources used in the 
notice of proposed rulemaking (80 FR 39546-39560; July 9, 2015) and do 
not repeat that information here. There are no changes to the specified 
activities, gear types, or active acoustic sound sources described in 
that document.
Comments and Responses
    We published a notice of proposed rulemaking in the Federal 
Register on July 9, 2015 (80 FR 39542) and requested comments and 
information from the public. We also published two corrections and 
extensions of the public comment period for the proposed rulemaking in 
the Federal Register on August 6, 2015 (80 FR 46939), and August 17, 
2015 (80 FR 49196). During the 70-day public comment period, we 
received letters from the Marine Mammal Commission (Commission), a 
joint letter from the Humane Society of the United States and Whale and 
Dolphin Conservation (HSUS/WDC), and comments from two private citizens 
which were not germane to the proposed action. We provide the comments 
and our responses here, and we have posted those comments on the 
Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental/research.htm and on the federal e-Rulemaking Portal at 
www.regulations.gov (enter 0648-BF02 in the ``Search'' box and scroll 
down to the Comments section). Please see the comment letters for the 
full rationale

[[Page 53064]]

behind our response to the recommendations.
    Comment 1: The Commission recommends that OPR develop criteria and 
guidance for determining when prospective applicants should request 
taking by Level B harassment incidental to the use of sub-bottom 
profilers, echosounders, and other sonars, stating that we should 
follow a consistent approach in assessing the potential for taking by 
Level B harassment from active acoustic systems.
    Response: OPR agrees with the Commission's recommendation. 
Generally speaking, there has been a lack of information and scientific 
consensus regarding the potential effects of electromechanical sources 
(including scientific sonars) on marine mammals, which may differ 
depending on the acoustic system and species in question as well as the 
environment in which an applicant operates the system. We are currently 
working to ensure that our consideration on the use of these types of 
active acoustic sources is consistent and look forward to the 
Commission's advice as we develop guidance as recommended.
    Comment 2: The Commission recommends that the OPR require the NEFSC 
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-decibel (dB) rather than the 160-dB root mean square (rms) 
threshold. Please see the notice of proposed rulemaking (80 FR 39542; 
July 9, 2015) for a discussion related to acoustic terminology and 
thresholds. In addition, the Commission recommends that the OPR 
formulate a strategy for updating behavioral thresholds for all types 
of sound sources (i.e., impulsive and non-impulsive) incorporating new 
data regarding behavioral thresholds and finalize the thresholds within 
the next year or two.
    Response: Continuous sounds are those whose sound pressure level 
remains above that of the ambient sound, with negligibly small 
fluctuations in sound levels (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. One can further 
define intermittent sounds as either impulsive or non-impulsive. 
Impulsive sounds have been defined as sounds which are typically 
transient, brief (less than one second), 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 (less than one second), 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, echosounders emit 
pulses 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 the 
NEFSC. However, the vast majority of these references concern acoustic 
deterrent devices, which we do not believe are similar to the NEFSC's 
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' OPR 
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 (see 80 FR 45642, July 31, 2015). 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. With 
respect to updating behavioral thresholds for different types of sound 
sources as soon as possible, OPR agrees with the Commission's 
recommendation. Due to the complexity and variability of marine mammal 
behavioral responses, NOAA will continue to work on developing guidance 
regarding the effects of anthropogenic sound on marine mammal behavior.
    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., greater than 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 sub-bottom profilers.
    Response: We are aware of the referenced literature and considered 
that information in our notice of proposed rulemaking (80 FR 39558, 
July 9, 2015). 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 OPR's established 160-dB threshold for 
assessing the potential for incidental take for these sources (see also 
our response to Comment 2). 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 
either would 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

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2 sources considered in our assessment of potential incidental take 
from the NEFSC's use of active acoustic sources--and the potential 
range above threshold would be so small as to essentially discount 
them.
    Comment 4: HSUS/WDC provided comments on OPR's process for 
evaluating and adopting the NEFSC's Draft Programmatic Environmental 
Assessment (PEA) as described in the notice of proposed rulemaking. The 
commenters state that ``. . . [NMFS] has `evaluated the Draft EA and 
[we] are proposing to adopt it,' which would seem to indicate that no 
or only insubstantial changes were made, despite substantial critique 
of the Draft PEA. Moreover, NMFS appears to have finalized the Draft 
PEA as it states that [HSUS/WDC's] comments were `considered' in 
finalizing the PEA.''
    Response: OPR would like to clarify the process for evaluating the 
NEFSC's Draft PEA. First, we clearly state in our notice of proposed 
rulemaking (80 FR 39600, July 9, 2015) that the NEFSC, not NMFS' OPR, 
prepared the Draft PEA in accordance with the National Environmental 
Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and the Council on 
Environmental Quality (CEQ) regulations (40 CFR 1500-1508). The NEFSC 
released the Draft PEA for public review and comment in the Federal 
Register on December 29, 2014 (79 FR 78061); considered public comments 
in the interim; and finalized their PEA in November 2015. The NEFSC 
addresses public comments on the Draft PEA--including those submitted 
by HSUS/WDC in Section 1.5 of the Final PEA which is available on the 
Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental/research.htm.
    Second, for the purposes of determining whether the issuance of 
regulations and a subsequent Letter of Authorization (LOA) would have a 
significant effect on the human environment, OPR stated that we would 
independently evaluate the NEFSC's Draft PEA, propose to adopt it 
(i.e., the final PEA that addresses public comments received on the 
NEFSC's Draft PEA and our notice of proposed rulemaking); or prepare a 
separate NEPA analysis and incorporate relevant portions of NEFSC's 
Draft PEA by reference (80 FR 39600, July 9, 2015). Thus, the 
commenters' statement that ``. . . NMFS appears to have finalized the 
Draft PEA as it states that our comments were ``considered'' in 
finalizing the PEA,'' is inaccurate, as the NEFSC had not finalized the 
Draft PEA at the time of publishing the proposed rulemaking in July 
2015.
    Comment 5: HSUS/WDC commented that ``it would be important for 
commenters at this stage to understand whether the agency was simply 
adopting status quo mitigation measures discussed in the preferred 
alternative of the DPEA or including additional conservation measures 
for this permit. It would also be helpful to compare the data used in 
assessing status of, and impacts to, marine mammals discussed in the 
Draft PEA and which we critiqued in our comments. Yet there is no means 
of comparing what was proposed in the draft to what NMFS says it will 
adopt in a final form to allow understanding of whether changes were 
made in response to comments.''
    Response: See our Response to Comment 4. The NEFSC adhered to the 
procedural requirements of NEPA; the CEQ regulations for implementing 
NEPA, and NOAA Administrative Order 216-6 in developing the Final PEA. 
The connected federal action covered under the NEFSC's Final PEA is the 
issuance of regulations and subsequent Letter of Authorization (LOA) 
for the incidental taking of marine mammals under the MMPA. Under 
section 101(a)(5)(A) of the MMPA, OPR must consider a reasonable range 
of mitigation measures that may reduce the impact on marine mammals 
among other factors. However, some of the additional measures 
considered in the NEFSC's Alternative 3 could prevent them from 
maintaining the scientific integrity of its research programs. The 
NEFSC would normally exclude these measures from consideration in the 
Chapter 1 of the Final PEA as they would not meet the NEFSC's purpose 
and need under NEPA. Again, the NEFSC provides information on how they 
considered and addressed public comments in the Final PEA in Sections 
1.5 of that document. Also, Sections 4.4 and 4.6 describe the NEFSC's 
consideration of Alternative 3 which includes a suite of mitigation 
measures that the NEFSC did not propose to implement as a part of its 
Preferred Action under Alternative 2.
    Comment 6: HSUS/WDC commented on a discrepancy between Table 3 and 
Table 20 in the notice of proposed rulemaking for the potential 
biological removal (PBR) level for short-beaked common dolphins.
    Response: We thank the commenters for their review and have 
corrected the PBR value for short-beaked common dolphins to show 1,125 
in Table 9 of this document instead of 170, which is the average annual 
human caused mortality estimate. The information provided in Table 3 in 
the notice of proposed rulemaking for short-beaked common dolphins is 
correct and has not changed.
    Comment 7: HSUS/WDC commented that NMFS should re-examine impacts 
to bottlenose dolphin stocks since the NEFSC's research plans have not 
changed from what the NEFSC presented in the original application for 
an LOA and the Draft PEA. The commenters note that NMFS reduced the 
number of impacted bottlenose dolphin stocks to three: Western North 
Atlantic (WNA) Offshore, WNA Northern Migratory Coastal and WNA 
Southern Migratory Coastal rather than expand the list to consideration 
of all coastal bottlenose dolphin stocks as HSUS/WDC suggested in their 
2014 comments on the original application for an LOA and the Draft PEA.
    Response: The NEFSC considered HSUS/WDC's public comments on the 
likelihood of their research activities affecting certain stocks of 
bottlenose dolphins and reanalyzed the locations of their research 
activities relative to the ranges of estuarine and coastal bottlenose 
dolphin stocks in the Southeast LME within the Atlantic coast region. 
Based on that reanalysis and consideration of public comments, the 
NEFSC determined that the impact of their coastal research activities, 
namely the Apex Predators Bottom Longline Coastal Shark and the 
Cooperative Atlantic States Shark Pupping and Nursery Ground 
(COASTSPAN) Surveys, within the Southeast LME was smaller than the 
information presented in the original 2014 application for an LOA and 
the Draft PEA.
    The NEFSC's revised analysis revealed that the Apex Predators 
Bottom Longline Coastal Shark Survey intersects with the estimated 
ranges of three stocks of bottlenose dolphins: The WNA Offshore; the 
WNA Northern Migratory Coastal; and the WNA Southern Migratory Coastal 
stocks. This survey generally samples in water depths greater than 20 m 
(66 ft) (i.e., outside the typical range of estuarine dolphin stocks) 
and does not intersect with the remaining three coastal stocks in 
question: The WNA South Carolina-Georgia Coastal; the WNA Northern 
Florida Coastal; and the WNA Central Florida Coastal. The NEFSC 
determined that a take request was not warranted based on the following 
factors including: (1) The efficacy of the planned mitigation and 
monitoring measures in reducing the effects of the specified activity 
to the level of least practicable adverse impact; (2) the survey's 
location (offshore in water depths greater than 20 m [66 ft] depth) 
which has limited overlap with the primary habitat of the coastal

[[Page 53066]]

morphotype of bottlenose dolphins; (3) the total survey effort (less 
than 50 days annually); (4) seasonality (spring); and (5) survey 
frequency (conducted every two to three years).
    In assessing the impacts of the COASTSPAN survey, the NEFSC did not 
request take from the estuarine stocks of bottlenose dolphins in North 
Carolina, South Carolina, Georgia, and Florida, due to limited survey 
effort in estuarine waters. As discussed in the notice of proposed 
rulemaking (80 FR 39587, July 9, 2015), in the future, if there is a 
bottlenose dolphin take from one of the estuarine stocks (to be 
determined by genetic sampling), the NEFSC will consult with OPR and 
the Atlantic Bottlenose Dolphin Take Reduction Team under the Adaptive 
Management provisions of the final rule to discuss appropriate 
modifications to COASTSPAN survey protocols.
    NMFS provided a revised accounting of those coastal bottlenose 
dolphin stocks potentially impacted by the NEFSC's research activities 
within the 2015 Addendum to the NEFSC's 2014 LOA Application, available 
at: https://www.nmfs.noaa.gov/pr/permits/incidental/research.htm which 
NMFS announced in the ``Availability'' section of the Federal Register 
notice of proposed rulemaking, 80 FR 39542, July 9, 2015. Table 20 in 
the notice of proposed rulemaking (80 FR 39595, July 9, 2015) shows the 
total estimated take by mortality, serious injury, and Level A 
harassment for the three stocks. The NEFSC take request for bottlenose 
dolphins includes two in trawl gear, five in gillnet gear, one in 
longline gear, and three for the potential take of one unidentified 
delphinid by trawl, gillnet, and/or longline for the WNA Offshore, the 
WNA Northern Migratory Coastal, and the WNA Southern Migratory Coastal 
stocks during the five-year authorization period.
    The NEFSC notes in their final PEA that the Southeast Fisheries 
Science Center's (SEFSC) research activities could also potentially 
interact with the some of the same offshore and coastal stocks in the 
Atlantic coast region. The SEFSC is currently developing a Draft PEA 
and LOA application concerning fisheries research under its 
responsibility within the Atlantic coast region. The SEFSC's Draft PEA 
will also include consideration of coastal and estuarine bottlenose 
dolphin stocks within their future LOA application. This will include 
consideration of the NEFSC's research activities that occur in the 
Atlantic coast region. Thus, NMFS will be able to consider the combined 
impacts of incidental take related to NEFSC and SEFSC research 
activities on all bottlenose dolphin stocks within the Atlantic coast 
region.
    Comment 8: HSUS/WDC commented that the NEFSC's LOA application did 
not consider the impact of an unusual mortality event (UME) in the 
northwest Atlantic Ocean on the overall abundance (and PBR for each 
stock) of the WNA Northern and Southern Migratory Coastal stocks and 
the resident populations of the South Carolina/Georgia Coastal, North 
Florida Coastal and Central Florida Coastal stocks. They suggested that 
NMFS should reconsider the impacts of additional research-related takes 
on those stocks.
    Response: NMFS considered UMEs within the notice of proposed 
rulemaking for this activity in the Federal Register on July 9, 2015 
(80 FR 39569). See our Response to Comment 7 with respect to the lack 
of anticipated impacts related to NEFSC research activities on the WNA 
South Carolina-Georgia Coastal, the WNA Northern Florida Coastal, and 
the WNA Central Florida Coastal stocks of bottlenose dolphins.
    The dolphin stocks that may potentially occur within the vicinity 
of NEFSC coastal research activities include: The WNA Offshore, the WNA 
Northern Migratory Coastal, the Southern Migratory Coastal, and the WNA 
Southern Migratory Coastal stocks. However, specific information is 
lacking on which particular population or populations are affected by 
the UME (NMFS, 2015).
    As discussed in the notice of proposed rulemaking and in the 
analyses in other referenced documents, NMFS has evaluated the 
potential effects of the NEFSC's research activities on a number of 
marine mammal species, including impacts to bottlenose dolphins stocks 
subject to the current UME and concludes that NEFSC's activities will 
have a negligible impact on those stocks.
    Comment 9: HSUS/WDC expressed concern that we may not be 
appropriately accounting for behavioral impacts incidental to the 
NEFSC's use of active acoustic sources and noted that such impacts 
could occur at greater distances than considered in our analysis. The 
commenters discuss the results from Risch et al. (2012) and suggest 
that it is likely that disturbance from some of the NEFSC's active 
acoustic sources would be more widespread than projected thus 
underestimating the occurrence of Level B harassment.
    Response: See our Response to Comment 2. Beyond consideration of a 
different threshold for assessing potential behavioral impacts, it is 
not clear what additional or different approaches to impact assessment 
HSUS et al. might recommend. Absent a specific recommendation to 
consider, we believe that our approach to assessing the potential for 
behavioral harassment incidental to the NEFSC's use of active acoustics 
is appropriate. NMFS' assessment of acoustic impacts and the associated 
take estimates represent the consensus opinion of acoustics experts 
from NMFS' Office of Protected Resources and Office of Science and 
Technology.
    The Risch et al. (2012) study documented reductions in humpback 
whale vocalizations in the Stellwagen Bank National Marine Sanctuary 
concurrent with transmissions of the Ocean Acoustic Waveguide Remote 
Sensing (OAWRS) low-frequency fish sensor system at distances of 200 km 
from the source. The recorded OAWRS produced a series of frequency 
modulated pulses (between 0.4 and 1 kHZ, much lower in frequency, 
longer in duration, with the potential to mask mysticete vocalizations 
at longer distances than the predominant frequencies produced by the 
NEFSC's active acoustic sources which attenuate at shorter distances 
from the source) and the signal received levels ranged from 88 to 110 
dB re: 1 [mu]Pa (Risch et al., 2012). The authors hypothesized that 
individuals did not leave the area but instead ceased singing and noted 
that the duration and frequency range of the OAWRS signals (a novel 
sound to the whales) were similar to those of natural humpback whale 
song components used during mating (Risch et al., 2012). However, Gong 
et al. (2014), disputes these findings, suggesting that (Risch et al., 
2012) mistook natural variations in humpback whale song occurrence for 
changes caused by OAWRS activity approximately 200 km away. Risch et 
al. (2014) responded to Gong et al. (2014) and highlighted the context-
dependent nature of behavioral responses to acoustic stressors.
    Furthermore, the three predominant acoustic sources used by the 
NEFSC produce frequencies above the known functional hearing ranges for 
mysticetes. Mysticetes, including the humpback whale, are not likely to 
perceive most signals produced through the NEFSC's use of active 
acoustic sources and are therefore unlikely to behaviorally respond in 
a manner considered take. The NEFSC's initial estimates of Level B 
harassment due to acoustic sources did not consider functional hearing 
ranges and are therefore overestimates for mysticetes. For the final 
rule, NMFS has considered functional hearing and

[[Page 53067]]

has revised the expected take for mysticetes accordingly.
    Comment 10: HSUS/WDC commented on NMFS corrections to the proposed 
rule that increased the projected mortality estimates for gray and 
harbor seals and sought clarification on the proposed increase in take 
for both species.
    Response: The NEFSC reported an interaction with one gray seal 
during a Spring Bottom Trawl Survey in April 2015, after releasing 
their LOA application and Draft PEA for public comment. In order to 
account for the potential for future gear interaction indicated by this 
event, NMFS included this information within the notice of proposed 
rulemaking (80 FR 39582, July 9, 2015; see Table 4, footnote 2). NMFS 
then used this information to adjust the estimated take by mortality 
for gray seals and harbor seals (a species with potential similar gear 
vulnerability as the gray seal) accordingly in the Federal Register 
notice of correction (80 FR 46939, August 6, 2015).
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.'' NMFS provided a full description of 
the planned mitigation measures, including background discussion 
related to certain elements of the mitigation plan, in the notice of 
proposed rulemaking (80 FR 39595, July 9, 2015). Please see that 
document for more detail.

General Measures

    Coordination and communication--We require that the NEFSC 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 describing all required measures when submitting cruise 
instructions to OMAO or when completing contracts with external 
entities. The NEFSC will 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. 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.
    For all NEFSC-affiliated research projects and vessels, the vessel 
coordinator and center director reviews cruise instructions and 
protocols for avoiding adverse interactions with protected species. If 
the research is conducted on a NOAA vessel, the Commanding Officer 
finalizes these instructions. If any inconsistencies or deficiencies 
are found, the written instructions will be made fully consistent with 
the Northeast Fisheries Observer Program (NEFOP) training materials and 
any guidance on decision-making that arises out of the training 
opportunities described earlier. In addition, the NEFSC will review 
informational placards and reporting procedures and update them as 
necessary for consistency and accuracy. Many research cruises already 
include pre-sail review of protected species protocols. The NEFSC will 
require pre-sail briefings before all research cruises, including those 
conducted by cooperating partners, as part of its continuing research 
program.
    Protected species training--In an effort to help standardize and 
further emphasize the importance of protected species information, the 
NEFSC will implement a formalized protected species training program 
for all crew members as part of its continuing research program that 
will be required for all NEFSC-affiliated research projects, including 
cooperative research partners. The NEFSC will conduct training programs 
on a regular basis which will include topics such as monitoring and 
sighting protocols, species identification, decision-making factors for 
avoiding take, procedures for handling and documenting protected 
species caught in research gear, and reporting requirements. Required 
training will occur through participation in protected species training 
programs developed by the regional commercial Fisheries Observer 
Program, which will typically be the NEFOP.
    All NEFSC research crew members that may be assigned to monitor for 
the presence of marine mammals during future surveys will be required 
to attend an initial training course and refresher courses annually or 
as necessary. The implementation of this new training program will 
formalize and standardize the information provided to all crew that 
might experience protected species interactions during research 
activities.
    Vessel speed--Vessel speed during active sampling rarely exceeds 5 
kt, with typical speeds being 2 to 4 kt. Transit speeds vary from 6 to 
14 kt but average 10 kt. These low vessel speeds minimize the potential 
for ship strike (see ``Potential Effects of the Specified Activity on 
Marine Mammals and Their Habitat'' for an in-depth discussion of ship 
strike). 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 NEFSC 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 
limited 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 do not pose significant risk to certain species of marine 
mammals (e.g., large whales interactions with NEFSC longline gears) and 
are not subject to specific mitigation measures due to the low level of 
survey effort and small survey footprint relative to that of commercial 
fisheries. However, at all times when the NEFSC 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--The NEFSC will implement a number of handling 
protocols to minimize potential harm to marine mammals that are 
incidentally taken during the course of fisheries research activities. 
In general, protocols have already been prepared for use on commercial 
fishing vessels. Because incidental take of marine mammals in fishing 
gear is similar for commercial fisheries and research surveys, NEFSC 
proposes to adopt these protocols,

[[Page 53068]]

which are expected to increase post-release survival. In general, 
following a ``common sense'' approach to handling captured or entangled 
marine mammals will present the best chance of minimizing injury to the 
animal and of decreasing risks to scientists and vessel crew. Handling 
or disentangling marine mammals carries inherent safety risks, and 
using best professional judgment and ensuring human safety is 
paramount. The NEFSC protected species training programs will include 
procedures for handling and documenting protected species caught in 
research gear, and reporting requirements. The CS and appropriate 
members of the research crews will also be trained using the same 
monitoring, data collection, and reporting protocols for protected 
species as is required by the NEFOP.

Trawl Survey Visual Monitoring and Operational Protocols

    The mitigation requirements described here are applicable to all 
beam, mid-water, and bottom trawl operations conducted by the NEFSC.
    Visual monitoring--The OOD, CS (or other designated member of the 
Scientific Party), and crew standing watch on the bridge visually scan 
for marine mammals (and other protected species) during all daytime 
operations. Marine mammal watches will be conducted by scanning the 
surrounding waters with bridge binoculars to survey the area upon 
arrival at the station, during visual and sonar reconnaissance of the 
trawl line to look for potential hazards (e.g., commercial fishing 
gear, unsuitable bottom for trawling, etc.), and while the gear is 
deployed. During nighttime operations, visual observation will be 
conducted using the naked eye, to the extent allowed by available 
vessel lighting.
    Operational procedures--The primary purpose of conducting visual 
monitoring period is to implement the ``move-on rule.'' If marine 
mammals are sighted around the vessel before setting the gear, the OOD 
may decide to move the vessel away from the marine mammal to a 
different section of the sampling area if the animal appears to be at 
risk of interaction with the gear. During daytime trawl operations, 
research trawl gear is not deployed if marine mammals have been sighted 
near the ship unless those animals do not appear to be in danger of 
interactions with the trawl, as determined by the judgment of the OOD 
and CS. The efficacy of the move-on rule is limited during night time 
trawl operations or other periods of limited visibility. However, 
operational lighting from the vessel illuminates the water in the 
immediate vicinity of the vessel during gear setting and retrieval.
    After moving on, if marine mammals are still visible from the 
vessel and appear to be at risk, the OOD may decide to move the vessel 
again or skip the sampling station. The OOD will consult with the CS or 
other designated scientist (identified prior to the voyage and noted on 
the cruise plan) and other experienced crew as necessary to determine 
the best strategy to avoid potential takes of these species. Strategies 
are based on the species encountered, their numbers and behavior, their 
position and vector relative to the vessel, and other factors. For 
instance, a whale transiting through the area and heading away from the 
vessel may not require any move, or may require only a short move from 
the initial sampling site, while a pod of dolphins gathered around the 
vessel may require a longer move from the initial sampling site or 
possibly cancellation of the station if the dolphins follow the vessel. 
If trawling operations have been delayed because of the presence of 
marine mammals, then the vessel resumes trawl operations (when 
practical) only when the animals have not been sighted near the vessel 
or otherwise determined to no longer be at risk. This decision is at 
the discretion of the OOD and is situationally dependent.
    In general, trawl operations will be conducted immediately upon 
arrival on station in order to minimize the time during which marine 
mammals 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 NEFSC 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 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 NEFSC 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'').
    Speed and course alterations, Tow duration and direction--The 
vessel's speed during active sampling with trawl nets will not exceed 5 
kt. Typical towing speeds are 2-4 kt. Transit speed between active 
sampling stations will range from 10-12 kt, except in areas where 
vessel speeds are regulated to lower speeds. When operating in North 
Atlantic right whale Seasonal Management Areas, Dynamic Management 
Areas, or in the vicinity of right whales or surface active groups of 
large baleen whales the vessel's speed will not exceed 10 kt. Further, 
vessels will reduce speed and change course in the vicinity of resting 
groups of large whales.
    As noted earlier, if marine mammals are sighted prior to deployment 
of the trawl net, the vessel may be moved away from the animals to a 
new station at the discretion of the OOD. Also, at any time during a 
survey or in transit, any crew member that sights marine mammals that 
may intersect with the vessel course will immediately communicate their 
presence to the bridge for appropriate course alteration or speed 
reduction as possible to avoid incidental collisions.
    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 30 
minutes at the target depth will be implemented, excluding

[[Page 53069]]

deployment and retrieval time (which may require an additional 30 
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. The exceptions to the 30-minute tow duration are the 
Atlantic Herring Acoustic Pelagic Trawl Survey and the Deep-Water 
Biodiversity Survey where the total time in the water (deployment, 
fishing, and haul-back) are 40 to 60 minutes and 180 minutes, 
respectively.
    Trawl tow distances will be less than 3 nm--typically 1-2 nm, 
depending on the specific survey and trawl speed--which NMFS expects to 
reduce the likelihood of attracting and incidentally taking marine 
mammals.
    Gear maintenance--The crew will be careful 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.

Dredge Survey Visual Monitoring and Operational Protocols

    The mitigation requirements described here are applicable to all 
hydraulic, New Bedford-type, commercial, and Naturalist dredge 
operations conducted by the NEFSC.
    Visual monitoring--Visual monitoring requirements for all dredge 
gears 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. However, care will be taken when emptying the dredge to 
avoid damage to protected species 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 protected 
species are present.
    Tow duration and direction--Standard dredge durations are 15 
minutes or less, excluding deployment and retrieval time, to reduce the 
likelihood of attracting and incidentally taking protected species.

Longline Gear Visual Monitoring and Operational Protocols

    Visual monitoring--Visual monitoring requirements for pelagic or 
demersal longline surveys are the same as those described above for 
trawl surveys. Please see that section for full details.
    Operational procedures--Prior to setting the gear, the OOD, CS, and 
crew visually scan the waters surrounding the vessel for protected 
species at least 30 minutes before deploying the longline gear. This 
typically occurs during transit through the setting area and then 
returning back to the starting point. Longline sets may be delayed if 
marine mammals have been detected near the vessel in the 30 minutes 
prior to setting the gear.
    For the Apex Predators Bottom Longline Coastal Shark Survey, which 
has a separate survey protocol from the COASTSPAN and NEFOP Observer 
Bottom Longline Training surveys conducted by NEFSC, the OOD, CS, and 
crew use a one nautical mile radius around the vessel to guide the 
decision on whether marine mammals are at risk of interactions before 
deploying the gear. The vessel may be moved to a new location if marine 
mammals are present and the OOD uses professional judgment to minimize 
the risk to marine mammals from potential gear interactions.
    The OOD, CS, and crew standing watch will continually monitor the 
gear to look for hooked or entangled marine mammals and other protected 
species and will release the animal following standard handling and 
release protocols for marine mammals.
    The NEFSC has established standard soak times of three hours for 
bottom longline and two to five hours for pelagic longline surveys. The 
CS will ensure that soak times do not exceed five hours, except in 
cases where weather or mechanical difficulty delay gear retrieval.
    NEFSC longline protocols specifically prohibit chumming (releasing 
additional bait to attract target species to the gear). Bait is removed 
from hooks during retrieval and retained on the vessel until all gear 
is removed from the area. The crew will not discard offal or spent bait 
while longline gear is in the water to reduce the risk of marine 
mammals detecting the vessel or being attracted to the area.
    If marine mammals are detected while longline gear is in the water, 
the OOD exercises similar judgment and discretion to avoid incidental 
take of marine mammals as described for trawl gear. The species, 
number, and behavior of the marine mammals are considered along with 
the status of the ship and gear, weather and sea conditions, and crew 
safety factors.
    If marine mammals are present during setting operations, immediate 
retrieval or halting the setting operations may be warranted. If 
setting operations have been halted due to the presence of marine 
mammals, resumption of setting will not begin until no marine mammals 
have been observed for at least 15 minutes. When visibility allows, the 
OOD, CS, and crew standing watch will conduct set checks every 15 
minutes to look for hooked, or entangled marine mammals.
    If marine mammals are present during retrieval operations, haul-
back will be postponed until the OOD determines that it is safe to 
proceed. If haul-back operations have been halted due to the presence 
of marine mammals, resumption of haul-back would begin when no marine 
mammals have been observed for at least 15 minutes. When visibility 
allows, the OOD, CS, and crew standing watch will conduct set checks 
every 15 minutes to look for hooked, trapped, or entangled marine 
mammals.

Gillnet Visual Monitoring and Operational Protocols

    Visual monitoring--The monitoring procedures for gillnets are 
similar to those described for trawl gear. The NEFSC does not propose 
to use pelagic gillnets in any survey.
    Operational procedures--Gillnets are not deployed if marine mammals 
have been sighted on arrival at the sample site. The exception is for 
animals that, because of their behavior, travel vector or other 
factors, do not appear to be at risk of interaction with the gillnet 
gear. If no marine mammals are present, the gear is set and monitored 
during the soak. If a marine mammal is sighted during the soak and 
appears to be at risk of interaction with the gear, then the gear is 
pulled immediately.
    For the COASTSPAN surveys, which are performed in areas where 
estuarine dolphins may occur, the NEFSC will actively monitor for 
potential bottlenose dolphin entanglements by hand checking the gillnet 
gear every 20 minutes by lifting the foot net. Also, in the unexpected 
case of a bottlenose dolphin entanglement, the NEFSC would request and 
arrange for expedited genetic sampling in order to determine the stock 
and would photograph the dorsal fin and submit to the Southeast 
Stranding Coordinator for identification/matching to bottlenose 
dolphins in the Mid-Atlantic Bottlenose Dolphin Photo-identification 
Catalog.
    On the NEFOP Observer Gillnet Training cruises, which occur in 
areas covered by the HPTRP, acoustic pingers and weak links are used on 
all gillnets consistent with the Harbor Porpoise Take Reduction Plan 
regulations at (50 CFR 229.33) for commercial fisheries to reduce 
marine mammal bycatch. Under

[[Page 53070]]

the HPTRP, gillnet gear used in specific areas during specific times 
are required to be equipped with pingers. We discuss the use of pingers 
and their acoustic characteristics later within the subsection titled 
``Cooperative Research Visual Monitoring and Operational Protocols.''
    All NEFOP protocols concerning monitoring and reporting protected 
species interactions are followed as per the current NEFOP Observer 
Manual (available on the internet at https://www.nefsc.noaa.gov/fsb/manuals/2013/NEFSC_Observer_Program_Manual.pdf). The soak duration time 
is 12 to 24 hours. Communication with the NEFOP Training Lead and the 
vessel captain occurs within 24 to 48 hours prior to setting of gear. 
During these communications, the NEFOP Training Lead and Captain decide 
when to set the gear, specifically taking into account any possible 
weather delays to avoid a long soak period. They do not deploy the gear 
if a significant weather delay is expected that would increase the 
preferred soak duration to greater than 24 hours. In those situations, 
the gear set times will be delayed.

Fyke Net Visual Monitoring and Operational Protocols

    Visual monitoring--Fyke nets are normally set inshore by small boat 
crews, who will visually survey areas prior to deploying the nets. 
Monitoring is done prior to setting and during net retrieval which is 
conducted every 12 to 24-hours. If marine mammals are in close 
proximity (approximately 100 m) of the setting location, the field team 
will make a determination if the set location needs to be moved. If 
marine mammals are observed to interact with the gear during the 
setting, the crew will lift and remove the gear from the water.
    Operational procedures--A 2-m fyke net will be deployed with a 
marine mammal excluder device that reduces the effective mouth opening 
to less than 15 cm. The 1-m fyke net does not require an excluder 
device as the opening is 12 cm. These small openings will prevent 
marine mammals from entering the nets.

Beach Seine Visual Monitoring and Operational Protocols

    Visual monitoring--Prior to setting the seine nets, researchers 
will visually survey the area for marine mammals. They will also 
observe for marine mammals continuously during sampling.
    Operational procedures--Seines are deployed with one end held on 
shore by a crew member and the net slowly deployed by boat in an arc 
and then retrieved by pulling both ends onto shore. Typical seine hauls 
are less than 15 minutes with the resulting catch sampled and released. 
Scientists will look as far as field of view permits from the beach in 
the general sampling area before the net is fished and will not deploy 
if marine mammals are present. If marine mammals are observed to be 
interacting with the gear, it will be lifted and removed from the 
water.

Rotary Screw Trap Visual Monitoring and Operational Protocols

    Visual monitoring--Sites are visually surveyed for marine mammals 
prior to submerging the gear in the water channel. The traps remain in 
the water for an extended period of time and sampling crews tend the 
traps on a daily basis. The researchers will modify, delay, or conclude 
the sampling period depending on the numbers of marine mammals nearby 
and their potential for interacting with the gear as determined by the 
professional judgment of the researchers.
    Operational procedures--Under most conditions the live car (i.e., 
catch holding pen) is about 75 percent full of water, which would allow 
any trapped mammals to breath until release from the trap. Rotary screw 
trap tending schedules are adjusted according to conditions of the 
river/estuary and threats to protected species (i.e., presence of ESA-
listed fish or marine mammals in the area). If capture occurs, the 
animal is temporarily retained in a live tank and released as soon as 
possible.

Cooperative Research Visual Monitoring and Operational Protocols

    The mitigation requirements described earlier are applicable to 
commercial fishing vessels engaged in NEFSC cooperative research using 
trawls, dredges, longline, hook and line, lobster pots/traps, and 
gillnet gears.
    These commercial fishing vessels are significantly smaller than the 
NOAA vessels, and depending on their size and configuration, marine 
mammal sighting may be difficult to make during all aspects of fishing 
operations. Further, scientific personnel are normally restricted from 
the deck during gear setting and haul-back operations. For all vessel 
size classes, it is unlikely that the individual(s) searching for 
marine mammals will have unrestricted 360 degree visibility around the 
vessel. However, observations during approach to a fishing station and 
during gear setting and haul-back may be feasible and practicable from 
the wheelhouse.
    These projects will also comply with the TRP mitigation measures 
and gear requirements specified for their respective fisheries and 
areas (e.g., pingers, sinking groundlines, and weak links on gillnet 
gear).
    The NEFSC will review all NEFSC-affiliated research instructions 
and protocols for avoiding adverse interactions with protected species. 
If those instructions/protocols are not fully consistent with NEFOP 
training materials and guidance on decision-making that arises from 
NEFSC protected species training, the NEFSC will incorporate specific 
language into its contracts and agreements with NEFSC-affiliated 
research partners requiring adherence to all required training 
requirements, operating procedures, and reporting requirements for 
protected species.
    Operational procedures--For the Apex Predators Bottom Longline 
Coastal Shark and COASTSPAN longline and gillnet surveys, NEFSC 
partners would implement the Move-on-Rule. During the soak, the line is 
run and if any marine mammals are sighted the line is pulled 
immediately. On COASTSPAN gillnet surveys, gillnets are continuously 
monitored during the 3-hour soak time by under-running it, pulling it 
across the boat while leaving the net ends anchored. All animals, algae 
and other objects are removed with each pass as the net is reset into 
the water to minimize bycatch mortality.
    Acoustic deterrent devices--NEFSC-affiliated cooperative research 
projects involving commercial vessels and gear, as well as the NEFOP 
Observer Training Gillnet Surveys currently deploy acoustic pingers on 
anchored sinking gillnets in areas where they are required by 
commercial fisheries to comply with requirements in the HPTRP (50 CFR 
229.33). We considered the use of pingers in our notice of proposed 
rulemaking (80 FR 39558, July 9, 2015) and we do not discuss the 
potential taking of marine mammals resulting from NEFSC's use of 
pingers further in this document.

Pot/Trap Visual Monitoring and Operational Protocols

    Several NEFSC and cooperative research surveys use fish or lobster 
pots to selectively capture species for research, tagging studies, and 
sample collection. Fish pots select for particular species by 
configuring the entrances, mesh, and escape tunnels (or ``vents'') to 
allow retention of the target species, while excluding larger animals, 
and allowing smaller animals to escape from the pot before retrieval.
    Visual monitoring--The NEFSC and/or cooperating institutions shall 
initiate marine mammal watches (visual

[[Page 53071]]

observation) no less than 30 minutes prior to both deployment and 
retrieval of the pot and trap gear. Marine mammal watches shall be 
conducted by scanning the surrounding waters with the naked eye and 
binoculars (or monocular). During nighttime operations, visual 
observation shall be conducted using the naked eye and available vessel 
lighting.
    Operational Procedures--The NEFSC and/or cooperating institutions 
shall deploy pot gear as soon as is practicable upon arrival at the 
sampling station. The primary purpose of conducting a visual monitoring 
period is to implement the ``move-on rule.'' The NEFSC and/or 
cooperating institutions shall implement the move-on rule. If marine 
mammals are sighted near the vessel before setting the gear, the NEFSC, 
as appropriate may decide to move the vessel away from the marine 
mammal to a different section of the sampling area if the animal 
appears to be at risk of interaction with the gear. If, after moving 
on, marine mammals are still visible from the vessel, the NEFSC may 
decide to move again or to skip the station. The NEFSC may use best 
professional judgment in making this decision but may not elect to 
conduct the pot and trap activity when animals remain near the vessel.
    If marine mammals are sighted near the vessel during the soak and 
are determined to be at risk of interacting with the gear, then the 
NEFSC and/or cooperating institutions shall carefully retrieve the gear 
as quickly as possible. The NEFSC and/or cooperating institutions may 
use best professional judgment in making this decision.
    The NEFSC and/or cooperating institutions shall ensure that surveys 
deploy gear fulfilling all pot/trap universal commercial gear 
configurations such as weak link requirements and marking requirements 
as specified by applicable take reduction plans as required for 
commercial pot/trap fisheries.
    The NEFSC shall ensure that cooperating institutions conducting pot 
and trap surveys adhere to monitoring and mitigation requirements and 
shall include required protocols in all survey instructions, contracts, 
and agreements.

Acoustic Telemetry Gear Visual Monitoring and Operational Protocols

    The NEFSC deploys passive acoustic telemetry receivers in many of 
Maine's rivers, estuaries, bays and into the Gulf of Maine. These 
receivers monitor tagged Atlantic salmon, as well as other tagged 
animals of collaborators along the east coast.
    Visual monitoring--The receivers are set by small boat crews that 
visually survey the area for marine mammals prior to setting. 
Interactions with the gear or boats are not expected.
    Operational Procedures--Receivers are anchored using a 24-pound 
mushroom anchor or a 79-pound cement mooring and attached to a surface 
float by an 11/16 inch sinking pot warp with a weight rating of 1,200 
pounds. Units in the estuary and bay are equipped with whale-safe weak 
links with a weight rating of 600 pounds. Other receivers are deployed 
on coastal commercial lobstermen's fishing gears which comply with 
fishing regulations for nearshore operations. The receivers are 
recovered twice annually, but the traps are tended according to 
required fishing schedules of the fishery.
    We have carefully evaluated the NEFSC's planned mitigation measures 
and considered a range of other measures in the context of ensuring 
that we prescribed the means of effecting the least practicable adverse 
impact on the affected marine mammal species and stocks and their 
habitat. 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 here:
    (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 NEFSC's planned measures, as well as 
other measures considered, NMFS has 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
    NMFS previously reviewed the NEFSC species descriptions--which 
summarize available information regarding status and trends, 
distribution and habitat preferences, behavior and life history, and 
auditory capabilities of the potentially affected species--for accuracy 
and completeness and refer the reader to Sections 3 and 4 of the 
NEFSC'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 region where the NEFSC plans to conduct the 
specified activities, summarizing information related to the population 
or stock, including PBR. Please see Table 3 in the notice of proposed 
rulemaking (80 FR 39595, July 9, 2015) for that information. We do not 
repeat that information here.
Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat
    NMFS provided a summary and discussion of the ways that components 
of the specified activity (e.g., gear deployment, use of active 
acoustic sources, and visual disturbance) may impact marine mammals and 
their habitat in the notice of proposed rulemaking (80 FR 39595, July 
9, 2015). Specifically, we considered potential

[[Page 53072]]

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. We do not repeat that information 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 the NEFSC's research 
activities could occur as a result of: (1) Injury or mortality due to 
gear interaction; (2) behavioral disturbance resulting from the use of 
active acoustic sources (Level B harassment only); or (3) behavioral 
disturbance of pinnipeds hauled out on the shoreline resulting from 
close proximity of research vessels (Level B harassment only).

Estimated Take Due to Gear Interaction

    Historical Interactions--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 the NEFSC's past record of such 
incidents, and then also considered other species that may have similar 
vulnerabilities to the NEFSC's trawl, gillnet, and fyke net gear for 
which we have historical interaction records. We describe historical 
interactions with NEFSC research gear in Tables 1, 2, and 3 in this 
rule. Available records are for the years 2004 through the present. 
Please see the NEFSC's Final PEA for specific locations of these 
incidents.

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


                                                   Table 2--Historical Interactions with Gillnet Gear
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Number
                 Gear                           Survey                Date               Species           Number killed  released alive       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gillnet..............................  COASTSPAN...............      11/29/2008  Common Bottlenose                     1               0               1
                                                                                  dolphin (Northern
                                                                                  South Carolina
                                                                                  Estuarine System
                                                                                  stock) \1\.
Gillnet..............................  NEFOP Observer Gillnet          5/4/2009  Gray seal..............               1               0               1
                                        Training Trips.
Gillnet..............................  NEFOP Observer Gillnet          5/4/2009  Harbor porpoise........               1               0               1
                                        Training Trips.
--------------------------------------------------------------------------------
 Total individuals captured (total number of interactions given in parentheses)  Bottlenose dolphin (1).               1               0               1
                                                                                 Gray seal (1)..........               1               0               1
--------------------------------------
                                                                 ..............  Harbor porpoise (1)....               1               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ In 2008, the COASTSPAN gillnet survey caught and killed one common bottlenose dolphin while a cooperating institution was conducting the survey in
  South Carolina. This was the only occurrence of incidental take in these surveys. Although no genetic information is available from this dolphin,
  based on the location of the event, NMFS retrospectively assigned this mortality to the Northern South Carolina Estuarine System stock in 2015 from
  the previous classification as the western North Atlantic stock (Waring et al., 2014).


[[Page 53073]]


                                                   Table 3--Historical Interactions With Fyke Net Gear
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Number
                 Gear                           Survey                Date               Species           Number killed  released alive       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fyke Net.............................  Maine Estuaries               10/25/2010  Harbor seal............               1               0               1
                                        Diadromous Survey.
    Total............................  ........................               0  .......................               1               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The NEFSC has no recorded interactions with any gear other than 
midwater and bottom trawl, gillnet, and fyke net gears. As noted in the 
notice of proposed rulemaking (80 FR 39595, July 9, 2015), we 
anticipate future interactions with the same gear types.
    In order to use these historical interaction records in a 
precautionary manner as the basis for the take estimation process, and 
because we have no specific information to indicate whether any given 
future interaction might result in M/SI versus Level A harassment, we 
conservatively assume that all interactions equate to mortality.
    During trawl surveys, the NEFSC has recorded interactions with 
short-beaked common dolphins (Western North Atlantic stock; two total 
interactions with three individual animals); minke whale (one total 
interaction with one animal); and gray seal (one total interaction with 
one animal). Common dolphins are the species most likely to interact 
with NEFSC trawl gear with an average of 1.5 dolphins captured per 
interaction.
    During gillnet surveys, the NEFSC has recorded interactions with 
short-beaked common dolphins (Northern South Carolina Estuarine System 
stock; one total interaction with one animal); gray seal (one total 
interaction with one animal); and harbor porpoise (one total 
interaction with one animal).
    During one fyke net survey in 2010, the NEFSC recorded one 
interaction with one harbor seal. Since this recorded interaction, the 
NEFSC now requires the use of marine mammal excluder devices as a 
mitigation measure for this gear type.
    In order to produce the most precautionary take estimates possible, 
we use here the entirety of the data available to us (i.e., 2004-15).
    In order to estimate the potential number of incidents of M/SI + 
Level A that could occur incidental to the NEFSC's use of midwater and 
bottom trawl, gillnet, fyke net, and longline gear in the Atlantic 
coast region over the five-year period from 2015-20, we first look at 
the six species described that have been taken historically and then 
evaluate the potential vulnerability of additional species to these 
gears.
    Table 4 in this document shows the 11-year annual average captures 
of these six species and the projected five-year totals for this final 
rule, for trawl, gillnet, and fyke net gear. In order to produce 
precautionary estimates, we calculate the annual average for the 11-
year period (2004-2015) and round up the annual to the nearest whole 
number. Because the NEFSC requests take for a five-year period, we 
multiply the annual average by five and assume that this number may be 
taken within the effective five-year period of the proposed 
authorization.
    To date, infrequent interactions of trawl nets, gillnets, and fyke 
net gears with marine mammals have occurred in the Atlantic coast 
region during NEFSC research activities. The NEFSC interaction rates 
have exhibited some inter-annual variation in numbers, possibly due to 
changing marine mammal densities and distributions and dynamic 
oceanographic conditions. This approach is precautionary. Estimating 
takes of species captured historically will produce an estimate higher 
than the historic average take for each species taken incidentally 
during past NEFSC research. We use this methodology to ensure 
accounting for the maximum amount of potential take in the future, as 
well as accounting for the fluctuations in inter-annual variability 
observed during the 11-year time period. Moreover, these estimates are 
based on the assumption that annual effort over the proposed five-year 
authorization period will not exceed the annual effort during the 
period 2004-2015.

                                           Table 4--Annual Average Captures (2004-15) and Projected Five-Year Total for Historically-Captured Species
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                     Projected 5-
                     Gear                                  Species                 2004       05     06     07     08     09     10     11     12     13     14     15    Avg. per    year total
                                                                                                                                                                            year         \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Trawl........................................  Short-beaked common dolphin....           2      0      0      1      0      0      0      0      0      0      0      0        0.27            5
                                               Minke whale....................           0      0      0      0      0      1      0      0      0      0      0      0        0.09            5
                                               Gray seal......................           0      0      0      0      0      0      0      0      0      0      0      1        0.09            5
Gillnet......................................  Common bottlenose dolphin......           0      0      0      0      1      0      0      0      0      0      0      0        0.09        \2\ 5
                                               Harbor porpoise................           0      0      0      0      0      1      0      0      0      0      0      0        0.09            5
                                               Gray seal......................           0      0      0      0      0      1      0      0      0      0      0      0        0.09            5
Fyke net.....................................  Harbor seal....................           0      0      0      0      0      0      1      0      0      0      0      0        0.09            5
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The estimated total is the product of the 2004-2015 annual average rounded up to the nearest whole number and multiplied by the five-year timespan of the proposed rule.
\2\ The projected 5-year total includes an estimate of 5 each for the Western North Atlantic offshore, the Western North Atlantic Northern Migratory Coastal, and the Western North Atlantic
  Southern Migratory Coastal stocks of common bottlenose dolphins. The NEFSC is not requesting take for the estuarine stocks of bottlenose dolphins for the COASTPAN surveys.

    As background to the process of determining which species not 
historically taken may have sufficient vulnerability to capture in 
NEFSC gear to justify inclusion in the take authorization request, we 
note that the NEFSC is NMFS' research arm in the Greater Atlantic 
region which we consider as a leading source of expert knowledge 
regarding marine mammals (e.g., behavior, abundance, density) in the 
areas where the NEFSC operates. The NEFSC formulated the take requests 
for species selected by NEFSC subject matter experts who based their 
selections on the best available information. We have concurred with 
these decisions.
    In order to evaluate the potential vulnerability of additional 
species to trawl gears, gillnets, and fyke nets, we first 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. Despite no historical records of take in the

[[Page 53074]]

NEFSC's pelagic and bottom longline surveys, there is a substantial 
record of marine mammal take in commercial fisheries using similar 
gears. Therefore, we consider potential takes through use of longline 
gear through analogy to commercial fisheries. NMFS provided this 
information, as presented in the 2015 LOF (79 FR 77919; January 28, 
2015), in Tables 8, 9, and 10 in the notice of proposed rulemaking (80 
FR 39595, July 9, 2015) and do not reproduce it here.
    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 NEFSC survey 
operations. A number of factors (e.g., species-specific knowledge 
regarding animal behavior, overall abundance in the geographic region, 
density relative to NEFSC survey effort, feeding ecology, propensity to 
travel in groups commonly associated with other species historically 
taken) were taken into account by the NEFSC 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 NEFSC research gear. We have also determined that some 
species groups with documented M/SI are not likely to be vulnerable to 
capture in NEFSC gear. In these instances, we provide further 
explanation later in this document. Those species with no records of 
historical interaction with NEFSC research gear and no documented M/SI 
in relevant commercial fisheries, and for which the NEFSC has not 
requested the authorization of incidental take, are not considered 
further in this section. The NEFSC believes generally that any sex or 
age class of those species for which take authorization is requested 
could be captured.
    Non-historical interactions--In addition to those species the NEFSC 
has directly interacted with research fishing gear over the 11-year 
period (2004-2015), the NEFSC believes it is appropriate to include 
estimates for future incidental takes of a number of species that have 
not been taken historically but inhabit the same areas and show similar 
types of behaviors and vulnerabilities to such gear as the 
``reference'' species taken in the past. The NEFSC believes the 
potential for take of these other ``analogous'' species would be low 
and would occur rarely, if at all, based on lack of takes over the past 
11 years.
    We note that prior takes in the cooperative research fishery are 
assigned to the respective fishery; therefore the NEFSC did not 
consider those types of take in formulating the requested 
authorization. The NEFSC only estimated takes for NEFSC gear that: (1) 
Had a prior take in the historical record or (2) had analogous takes 
with commercial fishing gear.
    Vulnerability of analogous species to different gear types is 
informed by the record of interactions by the analogous and reference 
species with commercial fisheries using gear types similar to those 
used in research. Furthermore, when determining the amount of take 
requested, we make a distinction between analogous species thought to 
have the same vulnerability for incidental take as the reference 
species and those analogous species that may have a similar 
vulnerability. In those cases thought to have the same vulnerability, 
the request is for the same number per year as the reference species. 
In those cases thought to have similar vulnerability, the request is 
less than the reference species. For example, the NEFSC believes the 
vulnerability of harbor seals to be taken in trawl gear and gillnets is 
the same as for gray seals (one per year) and thus requests one harbor 
seal per year (total of five over the authorization period) for trawl 
gear and gillnets.
    Alternatively, the potential for take of Atlantic white-sided 
dolphins in gillnets is expected to be similar but less than that 
associated with harbor porpoises (one per year) and the reduced request 
relative to this reference species is one Atlantic white sided dolphin 
over the entire five-year authorization period.
    The approach outlined here reflects: (1) Concern that some species 
with which we have not had historical interactions may interact with 
these gears, (2) acknowledgment of variation between sets, and (3) 
understanding that many marine mammals are not solitary so if a set 
results in take, the take could be greater than one animal. In these 
particular instances, the NEFSC estimates the take of these species to 
be equal to the maximum interactions per any given set of a reference 
species historically taken during 2004-2015.
    Trawls--To estimate the requested taking of analogous species, the 
NEFSC identified several species in the western North Atlantic Ocean 
which may have similar vulnerability to research-based trawls as the 
short-beaked common dolphin. The maximum take of short-beaked common 
dolphin was two individuals in one trawl set in 2004. Therefore, on the 
basis of similar vulnerability, the NEFSC estimates two potential takes 
over the five year authorization period for each of the following 
species in trawls: Risso's dolphin; common bottlenose dolphin (offshore 
and both northern and southern coastal migratory stocks); Atlantic-
white-sided dolphin; white-beaked dolphin; Atlantic spotted dolphin; 
and harbor porpoise. For these species, we propose to authorize a total 
taking by M/SI + Level A of two individuals over the five-year timespan 
(see Table 5).
    Other dolphin species may have similar vulnerabilities as those 
listed above but because of the timing and location of NEFSC research 
activities, the NEFSC concluded that the likelihood for take of these 
species was low (see Tables 8, 9, and 10 in the notice of proposed 
rulemaking [80 FR 39595, July 9, 2015]). Those species include: 
Pantropical spotted dolphin; striped dolphin; Fraser's dolphin; rough-
toothed dolphin; Clymene dolphin; and spinner dolphin.
    Two pinniped species may be taken in commercial fisheries analogous 
to NEFSC research trawl activities. Therefore, NEFSC requests one 
potential take each of gray and harbor seals annually in trawls over 
the LOA authorization period. For these pinniped species, we propose to 
authorize a total taking by M/SI + Level A of five individuals over the 
five-year timespan (see Table 5).
    Gillnets--To estimate the requested take of analogous species for 
gillnets, the NEFSC identified several species in the western North 
Atlantic Ocean which may have similar vulnerability to research-based 
gillnet surveys as the bottlenose dolphin due to similar behaviors and 
distributions in the survey areas.
    Gillnet surveys typically occur nearshore in bays and estuaries. 
The NEFSC caught one gray seal and one harbor porpoise during Northeast 
Fisheries Observer Program training gillnet surveys. The NEFSC believes 
that harbor seals have the same vulnerability to be taken in gillnets 
as gray seals and therefore estimates five takes of harbor seals in 
gillnets over the five-year authorization period. For this species, we 
propose to authorize a total taking by M/SI + Level A of five 
individuals over the five-year timespan (see Table 5).
    Likewise, the NEFSC believes that Atlantic white-sided dolphins and 
short-beaked common dolphins have a similar vulnerability to be taken 
in gillnets as harbor porpoise and bottlenose dolphins and estimates 
one take each of Atlantic white-sided dolphin and short-beaked common 
dolphin in gillnet gear over the five-year authorization period. For 
this species,

[[Page 53075]]

we propose to authorize a total taking by M/SI + Level A of one 
individual over the five-year timespan (see Table 5).
    In 2008, the COASTSPAN gillnet survey caught and killed one common 
bottlenose dolphin while a cooperating institution was conducting the 
survey in South Carolina. This was the only occurrence of incidental 
take in these surveys. The NEFSC is not requesting any bottlenose 
dolphin takes from the Northern South Carolina Estuarine System stock, 
because of limited survey effort in estuarine waters. The NEFSC 
considers there to be a remote chance of incidentally taking a 
bottlenose dolphin from the estuarine stocks. Thus, the NEFSC is not 
requesting take for the estuarine stocks of bottlenose dolphins for the 
COASTPAN longline and gillnet surveys. However, in the future, if there 
is a bottlenose dolphin take from the estuarine stocks as confirmed by 
genetic sampling, the NEFSC will reconsider its take request in 
consultation and coordination with the NMFS Office of Protected 
Resources and the Atlantic Bottlenose Dolphin Take Reduction Team.
    Fyke nets--For fyke nets, the NEFSC believes that gray seals have a 
similar vulnerability for incidental take as harbor seals which 
interacted once in a single fyke net set during the past 11 years. For 
the period of this authorization, the NEFSC estimates one take annually 
by fyke net for gray and harbor seals over the five-year authorization 
period. Thus, for gray and harbor seals, we propose to authorize a 
total taking by M/SI + Level A of five individuals of harbor and gray 
seals over the five-year timespan (see Table 5).
    Longlines--While the NEFSC has not historically interacted with 
large whales or other cetaceans in its longline gear, it is well 
documented that some of these species are taken in commercial longline 
fisheries. The 2015 LOF classifies commercial fisheries based on prior 
interactions with marine mammals. Although the NEFSC used this 
information to help make an informed decision on the probability of 
specific cetacean and large whale interactions with longline gear, many 
other factors were also taken into account (e.g., relative survey 
effort, survey location, similarity in gear type, animal behavior, 
prior history of NEFSC interactions with longline gear, etc.). 
Therefore, there are several species that have been shown to interact 
with commercial longline fisheries but for which the NEFSC is not 
requesting take. For example, the NEFSC is not requesting take of large 
whales, long-finned pilot whales, and short-finned pilot whales in 
longline gear. Although these species could become entangled in 
longline gear, the probability of interaction with NEFSC longline gear 
is extremely low considering a low level of survey effort relative to 
that of commercial fisheries, the short length of the mainline, and low 
numbers of hooks used. Based on the amount of fish caught by commercial 
fisheries versus NEFSC fisheries research, the ``footprint'' of 
research effort compared to commercial fisheries is very small. The 
NEFSC considered previously caught species (as outlined in the 2015 
List of Fisheries, see Tables 8, 9, and 10 in the notice of proposed 
rulemaking (80 FR 39595, July 9, 2015) in analogous commercial 
fisheries to have a higher probability of take; however, all were not 
included for potential take by the NEFSC. Historically, marine mammals 
have never been caught or entangled in NEFSC longline gear. However, 
such gear could be considered analogous to potential commercial 
longline surveys that may be conducted elsewhere (e.g., Garrison, 2007; 
Roche et al., 2007; Straley et al., 2014). Given the potential for 
interactions, NEFSC estimates one take over the five-year authorization 
period of the following cetaceans in longline gear: Risso's dolphin; 
common bottlenose dolphin (offshore and both northern and southern 
coastal migratory stocks); and short-beaked common dolphins. For these 
species, we propose to authorize a total taking by M/SI + Level A of 
one individual over the five-year timespan (see Table 5).
    It is also possible that researchers may not be able to identify a 
captured animal to the species level 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 
NEFSC has requested the authorization of incidental M/SI + Level A for 
an unidentified delphinid by trawl (1 individual), gillnet (1 
individual), and longline (1 individual) gears over the course of the 
five-year period of the proposed authorization. Similarly, the NEFSC 
has requested the authorization of incidental M/SI + Level A for an 
unidentified pinniped by trawl (1 individual), fyke net (1 individual), 
gillnet (1 individual), and longline (1 individual) gears.
    Table 5 summarizes total estimated take due to gear interactions in 
the Atlantic coast region; these estimates reflects revisions from 
those provided in the notice of proposed rulemaking (80 FR 39595, July 
9, 2015) and the correction to the proposed rulemaking in the Federal 
Register on August 6, 2015 (80 FR 46939).

     Table 5--Total Estimated M/SI + Level A Due to Gear Interaction in the Atlantic Coast Region, 2015-2020
----------------------------------------------------------------------------------------------------------------
                                    Est. 5-year     Est. 5-year     Est. 5-year     Est. 5-year
             Species               total, trawl   total, gillnet      total,        total, fyke     Total, all
                                        \1\             \1\        longline \1\       net \1\          gears
----------------------------------------------------------------------------------------------------------------
Minke whale.....................               5               0               0               0               5
Risso's dolphin.................               2               0               1               0               3
Atlantic white-sided dolphin....               2               1               0               0               3
White-beaked dolphin............               2               0               0               0               2
Short-beaked common dolphin.....               5               1               1               0               7
Atlantic spotted dolphin........               2               0               0               0               2
Common bottlenose dolphin.......               2               5               1               0               8
(WNA offshore stock) \2\........
Common bottlenose dolphin.......               2               5               1               0               8
(WNA N. Migratory stock) \2\....
Common bottlenose dolphin.......               2               5               1               0               8
(WNA S. Migratory stock) \2\....
Harbor porpoise.................               2               5               0               0               7
Unidentified delphinid..........               1               1               1               0               3
Harbor seal.....................               5               5               0               5              15
Gray seal.......................               5               5               0               5              15

[[Page 53076]]

 
Unidentified pinniped...........               1               1               1               1               4
----------------------------------------------------------------------------------------------------------------
\1\ Please see preceding text for derivation of take estimates.
\2\ The NEFSC is not requesting takes for the estuarine stocks of bottlenose dolphins for the COASTPAN surveys.

Estimated Take Due to Acoustic Harassment

    As described in the notice of proposed rulemaking (80 FR 39595, 
July 9, 2015), we believe that NEFSC's 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 NEFSC and acoustics experts 
from other parts of NMFS) developed an analytical framework considering 
characteristics of the active acoustic systems described in the notice 
of proposed rulemaking (80 FR 39595, July 9, 2015) under Description of 
Active Acoustic Sound Sources, their expected patterns of use in the 
Atlantic coast region, 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 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 NEFSC 
fisheries research is relatively straightforward and has a number of 
key simplifying assumptions. NMFS' current acoustic guidance requires 
in most cases that we assume Level B harassment occurs when a marine 
mammal receives an acoustic signal at or above a simple step-function 
threshold. For use of these active acoustic systems, the current 
threshold is 160 dB re 1 [mu]Pa (rms) for Level B harassment. 
Estimating the number of exposures at the 160-dB received level 
requires several determinations, each of which is described 
sequentially here:
    (1) A detailed characterization of the acoustic characteristics of 
the effective sound source or sources in operation;
    (2) The operational areas exposed to levels at or above those 
associated with Level B harassment when these sources are in operation;
    (3) A method for quantifying the resulting sound fields around 
these sources; and
    (4) An estimate of the average density for marine mammal species in 
each area of operation.
    Quantifying the spatial and temporal dimension of the sound 
exposure footprint (or ``swath width'') of the active acoustic devices 
in operation on moving vessels and their relationship to the average 
density of marine mammals enables a quantitative estimate of the number 
of individuals for which sound levels exceed the relevant threshold for 
each area. The number of potential incidents of Level B harassment is 
ultimately estimated as the product of the volume of water ensonified 
at 160 dB rms or higher and the volumetric density of animals 
determined from simple assumptions about their vertical stratification 
in the water column. Specifically, reasonable assumptions based on what 
is known about diving behavior across different marine mammal species 
were made to segregate those that predominately remain in the upper 200 
m of the water column versus those that regularly dive deeper during 
foraging and transit. 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 39595, July 9, 
2015), and do not repeat the discussion here.
    As a result of discussion with NMFS subject matter experts in 
drafting the final rule, we have determined it appropriate to account 
for marine mammal functional hearing, although our consideration of 
functional hearing is fairly simplistic. We now consider functional 
hearing cut-offs (i.e., ranges of the functional hearing groups 
described in the notice of proposed rulemaking [80 FR 39595, July 9, 
2015] and in Southall et al. [2007]) in a straightforward manner in 
these calculations (i.e., sources are considered unlikely to lead to 
any Level B harassment if they are above or below functional hearing 
cut-offs). The result of this consideration is recognition that 
mysticetes are unlikely to perceive these signals; therefore, receipt 
of the signal would be highly unlikely to result in any reaction 
considered to be harassment.
    However, the known differences in hearing sensitivities between 
different marine mammal species, and within a functional hearing range 
(e.g., as reflected in auditory weighting functions), are not 
considered in estimates of Level B harassment by acoustic sources. All 
species are assumed to be equally sensitive to acoustic systems 
operating within their functional hearing range; therefore, the 
quantitative results presented here remain conservative with respect to 
functional hearing. We provide a summary of the results in Table 6.

    Table 6--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment in the Atlantic Coast Region and
                                                                Adjacent Offshore Waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Estimated Level B harassment (#s of animals)      Estimated
                                                                                      in 0-200m depth stratum                 Level B
                                                            Volumetric   ------------------------------------------------  harassment in
                         Species                            density (#/                                                     >200m depth        Total
                                                              km\3\)                                                          stratum
                                                                               EK60            ME70           DSM300     ----------------
                                                                                                                               EK60
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Atlantic Coast Region Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..............................             n/a               0               0               0              NA           \1\ 0

[[Page 53077]]

 
Humpback whale..........................................             n/a               0               0               0              NA           \1\ 0
Fin whale...............................................             n/a               0               0               0              NA           \1\ 0
Sei whale...............................................             n/a               0               0               0              NA           \1\ 0
Minke whale.............................................             n/a               0               0               0              NA           \1\ 0
Blue whale..............................................             n/a               0               0               0              NA           \1\ 0
Sperm whale.............................................         0.00005               0               0               0              NA           \2\ 0
Dwarf sperm whale.......................................          0.0001               0               0               0              NA           \2\ 0
Pygmy sperm whale.......................................          0.0001               0               0               0              NA           \2\ 0
Killer Whale............................................            0.00               0               0               0              NA           \2\ 0
Pygmy killer whale......................................            0.00               0               0               0              NA           \2\ 0
Northern bottlenose whale...............................            0.00               0               0               0              NA           \2\ 0
Cuvier's beaked whale...................................          0.0105               3               8               2              NA              13
Mesoplodon beaked whales................................          0.0105               3               8               2              NA              13
Melon-headed whale......................................            0.00               0               0               0              NA           \2\ 0
Risso's dolphin.........................................           0.011               3               8               2              NA              13
Long-finned pilot whale.................................          0.1725              41             127              35              NA             203
Short-finned pilot whale................................          0.1725              41             127              35              NA             203
Atlantic white-sided dolphin............................           0.122              29              90              25              NA             144
White-beaked dolphin....................................          0.0405              10              30               8              NA              48
Short-beaked common dolphin.............................          1.0575             254             780             213              NA           1,247
Atlantic spotted dolphin................................            0.00               0               0               0              NA           \2\ 0
Pantropical spotted dolphin.............................            0.00               0               0               0              NA           \2\ 0
Striped dolphin.........................................            0.00               0               0               0              NA           \2\ 0
Fraser's dolphin........................................            0.00               0               0               0              NA           \2\ 0
Rough toothed dolphin...................................            0.00               0               0               0              NA           \2\ 0
Clymene dolphin.........................................            0.00               0               0               0              NA           \2\ 0
Spinner dolphin.........................................            0.00               0               0               0              NA           \2\ 0
Common bottlenose dolphin (offshore)....................          0.0300               7              22               6              NA              35
Common bottlenose dolphin (coastal).....................          0.5165             124             381             104              NA             609
Harbor Porpoise.........................................          0.0965              23              71              19              NA             113
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Atlantic Coast Region Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Seal.............................................           1.422             342           1,049             287              NA           1,678
Gray Seal...............................................            0.00               0               0               0              NA           \2\ 0
Harp Seal...............................................            0.00               0               0               0              NA           \2\ 0
Hooded Seal.............................................            0.00               0               0               0              NA           \2\ 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Offshore Area Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..............................             n/a               0               0               0               0           \2\ 0
Humpback whale..........................................             n/a               0               0               0               0           \2\ 0
Fin whale...............................................             n/a               0               0               0               0           \2\ 0
Sei whale...............................................             n/a               0               0               0               0           \2\ 0
Minke whale.............................................             n/a               0               0               0               0           \2\ 0
Blue whale..............................................             n/a               1               1               0               0           \1\ 0
Sperm whale.............................................          0.0304              12               3               0              15              15
Dwarf sperm whale.......................................           0.004               0               0               0               2               2
Pygmy sperm whale.......................................           0.004               0               0               0               2               2
Killer Whale............................................            0.00               0               0               0               0           \2\ 0
Pygmy killer whale......................................            0.00               0               0               0               0           \2\ 0
Northern bottlenose whale...............................          0.0034               0               0               0               2               2
Cuvier's beaked whale...................................          0.0312               2               3  ..............              15              20
Mesoplodon beaked whales................................          0.0312               2               3               0              15              20
Melon-headed whale......................................            0.00               0               0               0               0           \2\ 0
Risso's dolphin.........................................           0.422              22              44               0               0              66
Long-finned pilot whale.................................          0.0512               3               5               0              24              32
Short-finned pilot whale................................          0.0512               3               5               0              24              32
Atlantic white-sided dolphin............................            0.00               0               0               0               0           \2\ 0
White-beaked dolphin....................................            0.00               0               0               0               0           \2\ 0
Short-beaked common dolphin.............................          0.9375              49              97               0               0             146
Atlantic spotted dolphin................................           0.104               5              11               0               0              16
Pantropical spotted dolphin.............................            0.00               0               0               0               0           \2\ 0
Striped dolphin.........................................           1.514              79             157               0               0             236
Fraser's dolphin........................................            0.00               0               0               0               0           \2\ 0
Rough toothed dolphin...................................           0.008               0               1               0               0               1

[[Page 53078]]

 
Clymene dolphin.........................................            0.00               0               0               0               0           \2\ 0
Spinner dolphin.........................................            0.00               0               0               0               0           \2\ 0
Common bottlenose dolphin (offshore)....................          0.2630              14              27               0               0              41
--------------------------------------------------------------------------------------------------------------------------------------------------------
n/a: not applicable
\1\ For mysticetes unlikely to be impacted by the predominant active acoustic sources used by the NEFSC, NMFS adjusted the take estimates from ten to
  zero based on functional hearing group sensitivity for mysticetes.
\2\ For species with unknown or very low volumetric densities, NMFS adjusted the take estimates from ten to zero because of the low probability of
  sighting or interaction with these species during most research cruises with the active acoustic instruments used in NEFSC research.

Estimated Take Due to Physical Disturbance

    Estimated take due to physical disturbance could potentially occur 
in the Penobscot River Estuary as a result of the unintentional 
approach of NEFSC vessels to pinnipeds hauled out on ledges.
    The NEFSC uses four gear types (fyke nets, beach seine, rotary 
screw traps, and Mamou shrimp trawl) to monitor fish communities in the 
Penobscot River Estuary. The NEFSC conducts the annual surveys over 
specific sampling periods which could use any gear type: Mamou trawling 
is conducted year-round; fyke net and beach seine surveys are conducted 
April-November; and rotary screw trap surveys from April-June.
    We anticipate that trawl, fyke net, and beach seine surveys may 
disturb harbor seals and gray seals hauled out on tidal ledges through 
physical presence of researchers. The NEFSC conducts these surveys in 
upper Penobscot Bay above Fort Point Ledge where there is only one 
minor seal ledge (Odum Ledge) used by approximately 50 harbor seals 
(i.e., based on a June 2001 survey). Although one cannot assume that 
the number of seals using this region is stable over the April-November 
survey period; it is likely lower in spring and autumn.
    There were no observations of gray seals in the 2001 survey, but 
recent anecdotal information suggests that a few gray seals may share 
the haulout site. These fisheries research activities do not entail 
intentional approaches to seals on ledges (i.e., boats avoid close 
approach to tidal ledges and no gear is deployed near the tidal 
ledges); only behavioral disturbance incidental to small boat 
activities is anticipated. It is likely that some pinnipeds on the 
ledges would move or flush from the haul-out into the water in response 
to the presence or sound of NEFSC survey vessels. Behavioral responses 
may be considered according to the scale shown in Table 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.....................  Seal head orientation or
                                               brief movement in
                                               response to disturbance,
                                               which may include turning
                                               head towards the
                                               disturbance, craning head
                                               and neck while holding
                                               the body rigid in a u-
                                               shaped position, changing
                                               from a lying to a sitting
                                               position, or brief
                                               movement of less than
                                               twice the animal's body
                                               length.
2...............  Movement..................  Movements in response to
                                               the source of
                                               disturbance, ranging from
                                               short withdrawals at
                                               least twice the animal's
                                               body length to longer
                                               retreats over the beach,
                                               or if already moving a
                                               change of direction of
                                               greater than 90 degrees.
3...............  Flush.....................  All retreats (flushes) to
                                               the water.
------------------------------------------------------------------------

    The NEFSC estimated potential incidents of Level B harassment due 
to physical disturbance (Table 8) using the following assumptions: (1) 
All hauled out seals may be disturbed by passing research skiffs, 
although researchers have estimated that only about 10 percent (5 
animals in a group of 50) have been visibly disturbed in the past; and 
(2) approximately 50 harbor seals and 20 gray seals may be disturbed by 
the passage of researchers for each survey effort (100 fyke net sets, 
100 beach seine sets, and 200 Mamou shrimp trawls per year).
    The estimated total number of instances of harassment is 
approximately 20,000 for harbor seals and 8,000 for gray seals 
annually.

 Table 8--Estimated Annual Level B Harassment Take of Pinnipeds Associated With Surveys in the Lower Estuary of
                                               the Penobscot River
----------------------------------------------------------------------------------------------------------------
                                  Estimated                                                          Estimated
           Species             seals on ledge     Survey gear    Number of sets   Survey season    instances of
                                   haulout                                                          harassment
----------------------------------------------------------------------------------------------------------------
Harbor seal..................              50  Fyke net........             100  April-November.           5,000
Gray seal....................              20                                                              2,000

[[Page 53079]]

 
Harbor seal..................              50  Beach seine.....             100  April-November.           5,000
Gray seal....................              20                                                              2,000
Harbor seal..................              50  Mamou shrimp                 200  Year-round.....          10,000
Gray seal....................              20   trawl.                                                     4,000
----------------------------------------------------------------------------------------------------------------

Summary of Estimated Incidental Take

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

                   Table 9--Summary Information Related to Proposed Annual Take Authorization in the Atlantic Coast Region, 2016-2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Proposed total                         Proposed total     Estimated
                                   annual Level B   Percent of estimated  M/SI + Level A  maximum annual                                    Stock trend
          Species \1\                harassment          population       authorization,  M/SI + Level A      PBR \3\        % PBR \4\          \5\
                                   authorization                             2015-2020          \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic Right whale.....                  0  0...................               0               0             n/a  ..............          [uarr]
Humpback whale.................                  0  0...................               0               0             n/a  ..............          [uarr]
Minke whale....................                  0  0...................               5               1             162            0.62               ?
Sei whale......................                  0  0...................               0               0             n/a  ..............               ?
Fin whale......................                  0  0...................               0               0             n/a  ..............               ?
Blue whale.....................                  0  0...................               0               0             n/a  ..............               ?
Sperm whale....................                 15  0.65................               0               0             n/a  ..............               ?
Kogia spp......................                  4  0.10................               0               0             n/a  ..............               ?
Cuvier's beaked whale..........                 33  0.51................               0               0             n/a  ..............               ?
Northern bottlenose whale......                  2  undet...............               0               0             n/a  ..............               ?
Mesoplodont beaked whales......                 33  0.47................               0               0             n/a  ..............  ..............
Bottlenose dolphin (WNA                         76  0.10................          \6\ 11             2.2             561            0.39               ?
 Offshore) \ 6\.
Bottlenose dolphin (WNA,                       609  5.27................          \6\ 11             2.2              86            2.56               ?
 Northern Migratory Coastal)
 \6\.
Bottlenose dolphin (WNA,                       609  6.64................          \6\ 11             2.2              63            3.49               ?
 Southern Migratory Coastal) \
 6\.
Pantropical spotted dolphin....                  0  0...................               0               0             n/a  ..............               ?
Atlantic spotted dolphin.......                 16  0.06................               3             0.6             316            0.19               ?
Spinner dolphin................                  0  undet...............               0               0             n/a  ..............               ?
Striped dolphin................                236  0.45................               0               0             n/a  ..............               ?
Short-beaked common dolphin....              1,393  0.80................              10               2           1,152            1.18               ?
White-beaked dolphin...........                 48  2.90................               3             0.6              10            6.00               ?
Atlantic white-sided-dolphin...                144  0.32................               5               1             304            0.33               ?
Risso's dolphin................                 79  0.43................               5               1             126            0.79               ?
Fraser's dolphin...............                  0  undet...............               0               0             n/a  ..............               ?
Rough-toothed dolphin..........                  1  0.37................               0               0             n/a  ..............               ?
Clymene dolphin................                  0  0...................               0               0             n/a  ..............               ?
Melon-headed whale.............                  0  undet...............               0               0             n/a  ..............               ?
Pygmy killer whale.............                  0  undet...............               0               0             n/a  ..............               ?
Northern bottlenose whale......                 12  undet...............               0               0             n/a  ..............               ?

[[Page 53080]]

 
Long-finned pilot whale........                235  0.89................               0               0             n/a  ..............               ?
Short-finned pilot whale.......                235  1.09................               0               0             n/a  ..............               ?
Harbor porpoise................                113  0.14................               7             1.4             706            0.20               ?
Gray seal......................       \7\ 0; 8,000  2.42................              15             3.6           1,469            0.25          [uarr]
Harp seal......................                  0  0...................               0               0             n/a  ..............    [rarr][uarr]
Harbor seal....................  \7\ 1,678; 20,000  2.48................              15             3.6           1,662            0.22               ?
Unidentified delphinid.........  .................  ....................  ..............             n/a             n/a  ..............             n/a
Unidentified pinniped..........  .................  ....................  ..............             n/a             n/a  ..............             n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Please see preceding text for details.
\1\ For species with multiple stocks in the Atlantic coast regions 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 coastal and estuarine stocks of bottlenose dolphins).
\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 delphinid that may be captured in longline or gillnet gear, one to the total for each delphinid that may be captured in trawl gear,
  and one pinniped that may be captured in fyke net gear. This represents the potential that the take of an unidentified pinniped or delphinid could
  accrue to any given stock captured in that gear. The proposed take authorization is formulated as a five-year total; the annual average is used only
  for purposes of negligible impact analysis. We recognize that portions of an animal may not be taken in a given year.
\3\ See Table 3 in the proposed notice of rulemaking 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.
\6\ For these stocks of bottlenose dolphins, the estimated annual maximum numbers of M/SI + Level A reflect the stock-specific trawl estimate (2), plus
  five for gillnet take, plus one for longline take, plus three for the potential take of one unidentified delphinid by trawl, gillnet, and longline.
\7\ The first number represents estimated annual Level B take by acoustic sources. The second number represents estimated annual Level B take by the
  physical disturbance during surveys in Penobscot Bay.

Analyses and Determinations

    Here we provide negligible impact analyses and small numbers 
analyses for the Atlantic coast region. Unless otherwise specified, the 
discussion below is intended to apply to all of the species for which 
take is authorized, i.e., those discussed previously and indicated in 
Table 9 given that the anticipated effects of these activities are 
expected to be similar in nature, and there is no information about the 
size, status, or structure of any species or stock that would lead to a 
different analysis. In some cases we add species-specific factors.

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).
    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 (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

[[Page 53081]]

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.
    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. 
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 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.
    Species/Group Specific Analysis--To avoid repetition, the majority 
of our determinations apply to all the species listed in Table 9, given 
that the anticipated effects of the NEFSC research activities 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, we describe them within the section or within a separate 
sub-section. See the Brief Background on Sound section earlier in the 
notice of proposed rulemaking (80 FR 39542, July 9, 2015) for a 
description of marine mammal functional hearing groups as originally 
designated by Southall et al. (2007).
    Acoustic Effects--Please refer to Table 9 for information relating 
to this analysis. As described in greater depth previously (see 
Acoustic Effects, in the notice of proposed rulemaking (80 FR 39542, 
July 9, 2015)), we do not believe that the NEFSC's 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 proposed annual take by Level B harassment is very low in 
relation to the population abundance estimate (less than 7.5 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 the notice of proposed 
rulemaking (80 FR 39542, July 9, 2015) and summarized earlier in the 
Estimated Take Due to Acoustic Harassment section, represents NMFS' 
best effort towards balancing the need to quantify the potential for 
occurrence of Level B harassment due to production of underwater sound 
with a general lack of information related to the specific way that 
these acoustic signals, which are generally highly directional and 
transient, interact with the physical environment and to a meaningful 
understanding of marine mammal perception of these signals and 
occurrence in the areas where the NEFSC operates. The sources 
considered here have moderate to high output frequencies (10 to 200 
kHz), generally short ping durations, and are typically focused (highly 
directional) to serve their intended purpose of mapping specific 
objects, depths, or environmental features. In addition, some of these 
sources can be operated in different output modes (e.g., energy can be 
distributed among multiple output beams) that may lessen the likelihood 
of perception by and potential impacts on marine mammals in comparison 
with the quantitative estimates that guide our take authorization.
    In particular, low-frequency hearing specialists (i.e., mysticetes) 
are less likely to perceive or, given perception, to react to these 
signals. These groups have reduced functional hearing at the higher 
frequencies produced by active acoustic sources considered here (e.g., 
primary operating frequencies of 38-200 kHz) and, based purely on their 
auditory capabilities, the potential impacts are likely much less (or 
non-existent). However, for purposes of this analysis, we assume that 
the take levels proposed for authorization would not occur for 
mysticetes. 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 NEFSC survey effort is 
widely dispersed in space and time, indicate that repeated exposures of 
the same individuals would be very unlikely.
    Take by M/SI + Level A--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

[[Page 53082]]

interactions to result in Level A harassment rather than serious 
injury; 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 2004-2015, would occur in each year from 
2015-20; and that (2) the majority of species for which take 
authorization is proposed have never been taken in NEFSC 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 + Level A for all stocks 
is significantly less than PBR (less than six percent for each stock).
    Large whales (North Atlantic right, blue, fin, sei, humpback, and 
sperm whales)--Due to their very low numbers within the NEFSC research 
area and a tendency to occur primarily in waters outside of the NEFSC 
research area, blue, sperm, and sei whales rarely coincide with NEFSC 
fisheries research vessels. Thus, we anticipate that any potential gear 
interactions are unlikely. There have been no entanglements or takes of 
blue, sperm, or sei whales or any ESA-listed marine mammals in NEFSC 
fisheries research. Thus, there are no requested take by M/SI + Level A 
of these species during the next five years. Given the mitigation 
measures in place and the lack of historical takes, the NEFSC does not 
expect to have any adverse gear interactions with ESA-listed cetaceans 
in research surveys.
    Long- and short-finned pilot whales--Due to the low levels of 
survey effort in hotspot areas for pilot whales, adherence to gear 
requirements for longline surveys, low numbers of hooks and sets used 
in longline surveys, and short soak times with continuous monitoring 
during gillnet surveys, we anticipate that any potential gear 
interactions are unlikely. There have been no entanglements or takes of 
long- or short-finned pilot whales in NEFSC fisheries research. Thus, 
there are no requested take by M/SI + Level A of these species during 
the next five years.
    Take by Physical Disturbance--We note that the NEFSC conducts one 
set of research activities where the physical presence of researchers 
may result in Level B incidental harassment of pinnipeds on haulouts. 
This level of periodic incidental harassment would have temporary 
effects and would not be expected to alter the continued use of the 
tidal ledges by seals. Anecdotal reports from previous monitoring show 
that the pinnipeds returned to the various sites and did not 
permanently abandon haul-out sites after the NEFSC conducted their 
research activities. Based on the following factors, the NEFSC's 
research activities are not likely to cause permanent abandonment of 
the haulout areas, injury, serious injury, or mortality because: (1) 
The effects of the research activities would be limited to short-term 
startle responses and localized behavioral changes due to the short and 
sporadic duration of the research activities; (2) minor and brief 
responses, such as short-duration startle or alert reactions, are not 
likely to constitute disruption of behavioral patterns, such as 
migration, nursing, breeding, feeding, or sheltering; and (3) the 
availability of alternate areas for pinnipeds to avoid the resultant 
visual disturbances from the research operations.
    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 NEFSC fisheries research 
activities will have a negligible impact on the affected marine mammal 
species or stocks in the Atlantic coast region. 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; and (4) 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.

Small Numbers Analyses

    Please see Table 9 for information relating to this small numbers 
analysis. The total amount of taking proposed for authorization is less 
than 6.0 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 Atlantic coast 
region.

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.
    The NEFSC 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

[[Page 53083]]

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 NMFS and 
the NEFSC crafted the monitoring requirements described here.

Visual Monitoring

    Marine mammal watches are a standard part of conducting fisheries 
research activities, and are implemented as described previously in 
Mitigation. Marine mammal watches and monitoring occur prior to 
deployment of gear, and they continue until gear is brought back on 
board. Office of Marine Aviation and Operations personnel operating 
NOAA vessels are required to monitor interactions with protected 
species (and report interactions to the NEFSC Director). Similarly, 
there is a condition of grant and contract awards for monitoring of 
protected species takes.
    In the Penobscot Bay only, the NEFSC will monitor any potential 
disturbance of pinnipeds on ledges, paying particular attention to the 
distance at which different species of pinniped are disturbed. 
Disturbance will be recorded according to the three-point scale, 
representing increasing seal response to disturbance, shown in Table 7.

Training

    The NEFSC anticipates that additional information on practices to 
avoid marine mammal interactions can be gleaned from training sessions 
and more systematic data collection standards. The NEFSC 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 Penobscot Bay surveys), completion of datasheets, and use 
of equipment. Some of these topics may be familiar to NEFSC staff, who 
may be professional biologists; the NEFSC shall determine the agenda 
for these trainings and ensure that all relevant staff have necessary 
familiarity with these topics.
    The NEFSC 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 NEFSC 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 NEFSC 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, NEFSC 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. 
NEFSC 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.
    NEFSC will record interaction information on either existing data 
forms created by other NMFS programs 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.

Reporting

    As is normally the case, NEFSC 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 NEFSC 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 NEFSC leadership and to the Office 
of Protected Resources (OPR) by event, survey leg, and cruise. 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 
the NEFSC 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 NEFSC will submit annual summary reports to OPR including: (1) 
Annual line-kilometers surveyed during which the EK60, ME70, DSM900 (or 
equivalent sources) were predominant; (2) summary information regarding 
use of all NEFSC-specific gears, including: longline (including bottom 
and vertical lines), gillnet, fyke net, and trawl (including bottom 
trawl) gear, including number of sets, hook hours, tows, etc., specific 
to each gear; (3) accounts of all incidents of marine mammal 
interactions, including circumstances of the event and descriptions of 
any mitigation procedures implemented or not implemented and why; (4) 
summary information related to any disturbance of pinnipeds during the 
Penobscot Bay surveys, 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; and (5) a written 
evaluation of the effectiveness of NEFSC mitigation strategies in 
reducing the number of marine mammal interactions with survey gear, 
including best professional judgment and suggestions for changes to the 
mitigation strategies, if any. The period of reporting will be a one 
year period beginning at the date of issuance of the LOA. The NEFSC 
must submit the report not less than ninety days following the end of 
the reporting period. Submission of this

[[Page 53084]]

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 staff, 
alerting them to the event and to the fact that updated information 
describing the circumstances of the event has been entered into the 
database. The PSIT and CS reports represent not only valuable real-time 
reporting and information dissemination tools but also serve as an 
archive of information that may be mined in the future to study why 
takes occur by species, gear, region, etc.
    The NEFSC will also collect and report all necessary data, to the 
extent practicable given the primacy of human safety and the well-being 
of captured or entangled marine mammals, to facilitate serious injury 
(SI) determinations for marine mammals that are released alive. NEFSC 
will require that the CS complete data forms (already developed and 
used by commercial fisheries observer programs) and address 
supplemental questions, both of which have been developed to aid in SI 
determinations. NEFSC understands the critical need to provide as much 
relevant information as possible about marine mammal interactions to 
inform decisions regarding SI determinations. In addition, the NEFSC 
will perform all necessary reporting to ensure that any incidental M/SI 
is incorporated as appropriate into relevant SARs.

Adaptive Management

    The final regulation governing the take of marine mammals 
incidental to NEFSC fisheries research survey operations in the 
specified geographical region contains an adaptive management 
component. The inclusion of an adaptive management component is both 
valuable and necessary within the context of five-year regulation for 
activities that have been associated with marine mammal mortality.
    The reporting requirements associated with this final rule are 
designed to provide OPR with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. NMFS OPR 
and the NEFSC will meet annually to discuss the monitoring reports and 
current science and whether mitigation or monitoring modifications are 
appropriate. The use of adaptive management allows NMFS OPR to consider 
new information from different sources to determine (with input from 
the NEFSC regarding practicability) on an annual or biennial basis if 
mitigation or monitoring measures should be modified (including 
additions or deletions). Mitigation measures could be modified if new 
data suggests that such modifications would have a reasonable 
likelihood of reducing adverse effects to marine mammals and if the 
measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal 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 this regulation or 
subsequent LOA.

Changes to the Proposed Regulations

    As a result of clarifying discussions with NEFSC, 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.

Mitigation Measures for Pot/Trap Gear

    As described in the notice of proposed rulemaking (80 FR 39546-
39560; July 9, 2015), NEFSC engages in cooperative research activities 
and observer training that may use different gear types and vary from 
year to year, while remaining within the overall scope of activity 
described and analyzed for NEFSC. Within the scope of the proposed 
rule, NEFSC plans to conduct or fund observer training using pot/trap 
gear within the period of validity for these regulations; therefore, it 
is appropriate to specify mitigation measures specific to this gear 
type. Inclusion of mitigation measures specific to pot/trap gear does 
not affect any of our determinations, and does not reflect an increase 
in the total amount or type of activity anticipated or change in the 
extent or type of taking anticipated.

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 the specified geographical region for which we are 
issuing this regulation. 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.

Endangered Species Act (ESA)

    There are multiple marine mammal species listed under the ESA with 
confirmed or possible occurrence in the specified geographical region. 
In the Northeast Region, research surveys occur in two areas that have 
been designated as critical habitat for the North Atlantic right whale 
(NOAA, 1994). These are the Cape Cod Bay (CCB) Critical Habitat Area 
and the Great South Channel (GSC) Critical Habitat Area. NMFS OPR 
initiated consultation with NMFS' Greater Atlantic Regional Office 
(GARFO) under section 7 of the ESA on the promulgation of a five-year 
regulation and the subsequent issuance of an LOA to the NEFSC under 
section 7 of the ESA. In June 2016, the GARFO issued a biological 
opinion to OPR and the NEFSC (concerning conduct of the specified 
activities) which concluded that the issuance of the authorization is 
not likely to jeopardize the continued existence of any listed marine 
mammal species is not likely to adversely affect any listed marine 
mammal species. The opinion also concluded that the issuance of the 
authorization 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 CEQ (40 CFR parts 1500-1508), the NEFSC prepared a PEA to 
consider the direct, indirect and cumulative effects to the human 
environment resulting from the described research activities. OPR made 
NEFSC's draft PEA 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 a regulation and 
subsequent Letter of Authorization to the NEFSC. Also in compliance 
with NEPA and the CEQ regulations, as well as NOAA Administrative Order 
216-6, OPR has reviewed NEFSC's PEA, determined it to be sufficient, 
and adopted that PEA and signed a Finding of No Significant Impact 
(FONSI) on August 2, 2016. The NEFSC'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

    Per the procedures established to implement Executive Order 12866, 
the Office of Management and Budget has

[[Page 53085]]

determined that this rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this 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.
    This rule does not contain a collection-of-information requirement 
subject to the provisions of the Paperwork Reduction Act (PRA) because 
the applicant is a federal agency. Notwithstanding any other provision 
of law, no person is required to respond to nor shall a person be 
subject to a penalty for failure to comply with a collection of 
information subject to the requirements of the PRA unless that 
collection of information displays a currently valid OMB control 
number.

List of Subjects in 50 CFR Part 219

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

    Dated: August 2, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, the NMFS amends 50 CFR part 
219 as follows:

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

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

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


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

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

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


Sec.  219.31  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Northeast Fisheries Science Center (NEFSC) 
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 NEFSC may be authorized in a 
Letter of Authorization (LOA) only if it occurs within the Atlantic 
coast region.


Sec.  219.32  Effective dates.

    Regulations in this subpart are effective September 12, 2016 
through September 9, 2021.


Sec.  219.33   Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  219.7, the Holder of the LOA (hereinafter ``NEFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  219.31(b) by Level B harassment associated with 
use of active acoustic systems and physical or visual disturbance of 
hauled-out pinnipeds and by Level A harassment, serious injury, or 
mortality associated with use of trawl, dredge, bottom and pelagic 
longline, gillnet, pot and trap, fyke net, beach seine, and rotary 
screw trap gears, provided the activity is in compliance with all 
terms, conditions, and requirements of the regulations in this subpart 
and the appropriate LOA, provided the activity is in compliance with 
all terms, conditions, and requirements of the regulations in this 
subpart and the appropriate LOA.


Sec.  219.34  Prohibitions.

    Notwithstanding takings contemplated in Sec.  219.31 and authorized 
by a LOA issued under Sec.  216.106 of this chapter and Sec.  219.7, no 
person may, in connection with the activities described in Sec.  
219.31:
    (a) Take any marine mammal not specified in Sec.  219.33(b);
    (b) Take any marine mammal specified in Sec.  219.33(b) in any 
manner other than as specified;
    (c) Take a marine mammal specified in Sec.  219.33(b) 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.  219.33(b) 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.  216.106 of 
this chapter and Sec.  219.37.


Sec.  219.35  Mitigation requirements.

    When conducting the activities identified in Sec.  219.31(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  219.37 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions:
    (1) NEFSC 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) NEFSC shall coordinate and conduct briefings at the outset of 
each survey and as necessary between the ship's crew (Commanding 
Officer/master or designee(s), contracted vessel owners, as 
appropriate) and scientific party or in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures.
    (3) NEFSC 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, NEFSC 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) All vessels must comply with applicable and relevant take 
reduction

[[Page 53086]]

plans, including any required use of acoustic deterrent devices.
    (6) All vessels must comply with applicable speed restrictions.
    (7) NEFSC shall implement handling and/or disentanglement protocols 
as specified in the guidance provided to NEFSC survey personnel.
    (b) Trawl survey protocols:
    (1) NEFSC shall conduct trawl operations as soon as is practicable 
upon arrival at the sampling station.
    (2) NEFSC shall initiate marine mammal watches (visual observation) 
prior to sampling. Marine mammal watches shall be conducted by scanning 
the surrounding waters with the naked eye and binoculars (or 
monocular). During nighttime operations, visual observation shall be 
conducted using the naked eye and available vessel lighting.
    (3) NEFSC shall implement the ``move-on rule.'' If a marine mammal 
is sighted around the vessel before setting the gear, NEFSC may decide 
to move the vessel away from the marine mammal to a different section 
of the sampling area if the animal appears to be at risk of interaction 
with the gear. If, after moving on, marine mammals are still visible 
from the vessel, NEFSC may decide to move again or to skip the station. 
NEFSC may use best professional judgment in making this decision.
    (4) NEFSC shall maintain visual monitoring effort during the entire 
period of time that trawl gear is in the water (i.e., throughout gear 
deployment, fishing, and retrieval). If marine mammals are sighted 
before the gear is fully removed from the water, NEFSC shall take the 
most appropriate action to avoid marine mammal interaction. NEFSC may 
use best professional judgment in making this decision.
    (5) If trawling operations have been suspended because of the 
presence of marine mammals, NEFSC may resume trawl operations when 
practicable only when the animals are believed to have departed the 
area. NEFSC may use best professional judgment in making this 
determination.
    (6) NEFSC shall implement standard survey protocols to minimize 
potential for marine mammal interaction, 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.
    (c) Dredge survey protocols:
    (1) NEFSC shall deploy dredge gear as soon as is practicable upon 
arrival at the sampling station.
    (2) NEFSC shall initiate marine mammal watches (visual observation) 
prior to sampling. Marine mammal watches shall be conducted by scanning 
the surrounding waters with the naked eye and binoculars (or 
monocular). During nighttime operations, visual observation shall be 
conducted using the naked eye and available vessel lighting.
    (3) NEFSC shall implement the ``move-on rule.'' If marine mammals 
are sighted around the vessel before setting the gear, the NEFSC may 
decide to move the vessel away from the marine mammal to a different 
section of the sampling area if the animal appears to be at risk of 
interaction with the gear. If, after moving on, marine mammals are 
still visible from the vessel, NEFSC may decide to move again or to 
skip the station. NEFSC may use best professional judgment in making 
this decision but may not elect to conduct dredge survey activity when 
animals remain near the vessel.
    (4) NEFSC shall maintain visual monitoring effort during the entire 
period of time that dredge gear is in the water (i.e., throughout gear 
deployment, fishing, and retrieval). If marine mammals are sighted 
before the gear is fully removed from the water, NEFSC shall take the 
most appropriate action to avoid marine mammal interaction. NEFSC may 
use best professional judgment in making this decision.
    (5) If dredging operations have been suspended because of the 
presence of marine mammals, NEFSC may resume operations when 
practicable only when the animals are believed to have departed the 
area. NEFSC may use best professional judgment in making this 
determination.
    (6) NEFSC shall carefully empty the dredge gear as quickly as 
possible upon retrieval to determine if marine mammals are present in 
the gear.
    (d) Bottom and pelagic longline survey protocols:
    (1) NEFSC shall deploy longline gear as soon as is practicable upon 
arrival at the sampling station.
    (2) NEFSC 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 binoculars (or 
monocular). During nighttime operations, visual observation shall be 
conducted using the naked eye and available vessel lighting.
    (3) NEFSC shall implement the ``move-on rule.'' If marine mammals 
are sighted near the vessel 30 minutes before setting the gear, the 
NEFSC may decide to move the vessel away from the marine mammal to a 
different section of the sampling area if the animal appears to be at 
risk of interaction with the gear. If, after moving on, marine mammals 
are still visible from the vessel, NEFSC may decide to move again or to 
skip the station. NEFSC may use best professional judgment in making 
this decision but may not elect to conduct longline survey activity 
when animals remain near the vessel.
    (4) For the Apex Predators Bottom Longline Coastal Shark Survey, if 
one or more marine mammals are observed within 1 nautical mile (nmi) of 
the planned location in the 30 minutes before gear deployment, NEFSC 
shall transit to a different section of the sampling area to maintain a 
minimum set distance of 1 nmi from the observed marine mammals. If, 
after moving on, marine mammals remain within 1 nmi, NEFSC may decide 
to move again or to skip the station. NEFSC may use best professional 
judgment in making this decision but may not elect to conduct pelagic 
longline survey activity when animals remain within the 1-nmi zone.
    (5) NEFSC shall maintain visual monitoring effort during the entire 
period of gear deployment or retrieval. If marine mammals are sighted 
before the gear is fully deployed or retrieved, NEFSC shall take the 
most appropriate action to avoid marine mammal interaction. NEFSC may 
use best professional judgment in making this decision.
    (6) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, NEFSC may resume such 
operations after there are no sightings of marine mammals for at least 
15 minutes within the area or within the 1-nmi area for the Apex 
Predators Bottom Longline Coastal Shark Survey. NEFSC may use best 
professional judgment in making this decision.
    (7) NEFSC shall implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming.
    (e) Gillnet survey protocols:
    (1) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall deploy gillnet gear as 
soon as is practicable upon arrival at the sampling station.
    (2) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall initiate marine mammal 
watches (visual observation) prior to both deployment and retrieval of 
the gillnet gear. When the vessel is on station during the soak, marine 
mammal watches shall be

[[Page 53087]]

conducted during the soak by scanning the surrounding waters with the 
naked eye and binoculars (or monocular).
    (3) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall implement the ``move-on 
rule.'' If marine mammals are sighted near the vessel before setting 
the gear, the NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains, may decide to move the vessel 
away from the marine mammal to a different section of the sampling area 
if the animal appears to be at risk of interaction with the gear. If, 
after moving on, marine mammals are still visible from the vessel, the 
NEFSC and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains may decide to move again or to skip the 
station. The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains may use best professional 
judgment in making this decision but may not elect to conduct the 
gillnet survey activity when animals remain near the vessel.
    (4) If marine mammals are sighted near the vessel during the soak 
and are determined to be at risk of interacting with the gear, then the 
NEFSC and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains shall carefully retrieve the gear as 
quickly as possible. The NEFSC and/or its cooperating institutions, 
contracted vessels, or commercially-hired captains may use best 
professional judgment in making this decision.
    (5) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall implement standard survey 
protocols, including continuously monitoring the gillnet gear during 
soak time and removing debris with each pass as the net is reset into 
the water to minimize bycatch.
    (6) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall ensure that surveys 
deploy acoustic pingers on gillnets in areas where required for 
commercial fisheries. NEFSC must ensure that the devices are operating 
properly before deploying the net.
    (7) NEFSC shall ensure that cooperating institutions, contracted 
vessels, or commercially-hired captains conducting gillnet surveys 
adhere to monitoring and mitigation requirements and shall include 
required protocols in all survey instructions, contracts, and 
agreements.
    (8) For the COASTSPAN gillnet surveys, the NEFSC and/or its 
cooperating institutions, contracted vessels, or commercially-hired 
captains will actively monitor for potential bottlenose dolphin 
entanglements by hand-checking the gillnet every 20 minutes. In the 
unexpected case of a bottlenose dolphin entanglement, the NEFSC and/or 
its cooperating institutions, contracted vessels, or commercially-hired 
captains shall request and arrange for expedited genetic sampling for 
stock determination. The NEFSC and/or its cooperating institutions, 
contracted vessels, or commercially-hired captains shall also 
photograph the dorsal fin and submit the image to the NMFS Southeast 
Stranding Coordinator for identification/matching to bottlenose 
dolphins in the Mid-Atlantic Bottlenose Dolphin Photo-identification 
Catalog.
    (f) Pot and trap survey protocols:
    (1) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall deploy pot gear as soon 
as is practicable upon arrival at the sampling station.
    (2) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall initiate marine mammal 
watches (visual observation) no less than 30 minutes prior to both 
deployment and retrieval of the pot and trap gear. Marine mammal 
watches shall be conducted by scanning the surrounding waters with the 
naked eye and binoculars (or monocular). During nighttime operations, 
visual observation shall be conducted using the naked eye and available 
vessel lighting.
    (3) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall implement the move-on 
rule. If marine mammals are sighted near the vessel before setting the 
gear, the NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains, as appropriate, may decide to 
move the vessel away from the marine mammal to a different section of 
the sampling area if the animal appears to be at risk of interaction 
with the gear. If, after moving on, marine mammals are still visible 
from the vessel, the NEFSC, and/or its cooperating institutions, 
contracted vessels, or commercially-hired captains may decide to move 
again or to skip the station. The NEFSC and/or its cooperating 
institutions, contracted vessels, or commercially-hired captains may 
use best professional judgment in making this decision but may not 
elect to conduct the pot and trap activity when animals remain near the 
vessel.
    (4) If marine mammals are sighted near the vessel during the soak 
and are determined to be at risk of interacting with the gear, then the 
NEFSC and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains shall carefully retrieve the gear as 
quickly as possible. The NEFSC and/or its cooperating institutions, 
contracted vessels, or commercially-hired captains may use best 
professional judgment in making this decision.
    (5) The NEFSC and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains shall ensure that surveys 
deploy gear fulfilling all Pot/Trap universal commercial gear 
configurations such as weak link requirements and marking requirements 
as specified by applicable take reduction plans as required for 
commercial pot/trap fisheries.
    (6) The NEFSC shall ensure that its cooperating institutions, 
contracted vessels, or commercially-hired captains conducting pot and 
trap surveys adhere to monitoring and mitigation requirements and shall 
include required protocols in all survey instructions, contracts, and 
agreements.
    (g) Fyke net gear protocols:
    (1) NEFSC shall conduct fyke net gear deployment as soon as is 
practicable upon arrival at the sampling station.
    (2) NEFSC shall visually survey the area prior to both deployment 
and retrieval of the fyke net gear. NEFSC shall conduct monitoring and 
retrieval of the gear every 12- to 24-hour soak period.
    (3) If marine mammals are in close proximity (approximately 328 
feet [100 meters]) of the setting location, NEFSC shall determine if 
the set location should be moved. NEFSC may use best professional 
judgment in making this decision.
    (4) If marine mammals are observed to interact with the gear during 
the setting, NEFSC shall lift and remove the gear from the water.
    (5) NEFSC must install and use a marine mammal excluder device at 
all times when the 2-meter fyke net is used.
    (h) Beach seine gear protocols:
    (1) NEFSC shall conduct beach seine deployment as soon as is 
practicable upon arrival at the sampling station.
    (2) NEFSC shall visually survey the area prior to both deployment 
and retrieval of the seine net gear.
    (3) If marine mammals are in close proximity of the seining 
location, NEFSC shall lift the net and remove it from the water. NEFSC 
may use best professional judgment in making this decision.
    (i) Rotary screw trap gear protocols:
    (1) NEFSC shall conduct rotary screw trap deployment as soon as is

[[Page 53088]]

practicable upon arrival at the sampling station.
    (2) NEFSC shall visually survey the area prior to both setting and 
retrieval of the rotary screw trap gear. If marine mammals are observed 
in the sampling area, NEFSC shall suspend or delay the sampling. NEFSC 
may use best professional judgment in making this decision.
    (3) NEFSC shall tend to the trap on a daily basis to monitor for 
marine mammal interactions with the gear.
    (4) If the rotary screw trap captures a marine mammal, NEFSC shall 
carefully release the animal as soon as possible.


Sec.  219.36  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) Marine mammal visual monitoring shall occur: prior to 
deployment of beam, mid-water, and bottom trawl, bottom and pelagic 
longline, gillnet, fyke net, beach seine, pot, trap, and rotary screw 
trap gear; throughout deployment of gear and active fishing of all 
research gears; and throughout retrieval of all research gear.
    (2) Marine mammal watches shall be conducted by watch-standers 
(those navigating the vessel and/or other crew) at all times when the 
vessel is being operated.
    (3) NEFSC shall monitor any potential disturbance of pinnipeds on 
ledges, paying particular attention to the distance at which different 
species of pinniped are disturbed. Disturbance shall be recorded 
according to a three-point scale of response (i.e., 1 = alert; 2 = 
movement; 3 = flight) to disturbance.
    (b) The NEFSC shall continue to conduct a local census of pinniped 
haulout areas prior to conducting any fisheries research in the 
Penobscot River estuary to better understand the local abundance of 
animals. The NEFSC's census reports will now include an accounting of 
disturbance based on the three-point scale of response severity 
metrics.
    (c) Training:
    (1) NEFSC must conduct annual training for all chief scientists and 
other personnel (including its cooperating institutions, contracted 
vessels, or commercially-hired captains) who may be responsible for 
conducting dedicated marine mammal visual observations to explain 
mitigation measures and monitoring and reporting requirements, 
mitigation and monitoring protocols, marine mammal identification, 
completion of datasheets, and use of equipment. NEFSC may determine the 
agenda for these trainings.
    (2) NEFSC 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) NEFSC shall coordinate with NMFS' Southeast Fisheries Science 
Center (SEFSC) regarding surveys conducted in the southern portion of 
the Atlantic coast region, such that training and guidance related to 
handling procedures and data collection is consistent.
    (d) Handling procedures and data collection:
    (1) NEFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard procedures will be subject to approval by NMFS Office of 
Protected Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, NEFSC shall collect necessary data to 
facilitate a serious injury determination.
    (3) NEFSC shall provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring/or not bring an individual 
aboard a vessel, assess the level of consciousness, remove fishing 
gear, return an individual to water, and log activities pertaining to 
the interaction.
    (4) NEFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. The data shall be collected at a 
sufficient level of detail (e.g., circumstances leading to the 
interaction, extent of injury, condition upon release) to facilitate 
serious injury determinations under the MMPA.
    (e) Reporting:
    (1) NEFSC shall report all incidents of marine mammal interaction 
to NMFS' Protected Species Incidental Take database within 48 hours of 
occurrence.
    (2) NEFSC shall provide written reports to OPR upon request 
following any marine mammal interaction (animal captured or entangled 
in research gear). In the event of a marine mammal interaction, these 
reports shall include details of survey effort, full descriptions of 
any observations of the animals, the context (vessel and conditions), 
decisions made and rationale for decisions made in vessel and gear 
handling.
    (3) Annual reporting:
    (i) The period of reporting will be one year beginning at the date 
of issuance of the LOA. NEFSC shall submit an annual summary report to 
OPR not later than ninety days following the end of the reporting 
period.
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
DSM300 (or equivalent sources) were predominant and associated pro-
rated estimates of actual take;
    (B) Summary information regarding use of the following: All trawl 
gear, all longline gear, all gillnet gear, all dredge gear, fyke net 
gear, beach seine net gear, and rotary screw trap gear (including 
number of sets, hook hours, tows, and tending frequency specific to 
each gear type);
    (C) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why;
    (D) Summary information from the pinniped haulout censuses in the 
and summary information related to any disturbance of pinnipeds, 
including event-specific total counts of animals present, counts of 
reactions according to a three-point scale of response severity (1 = 
alert; 2 = movement; 3 = flight), and distance of closest approach;
    (E) A written evaluation of the effectiveness of NEFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any;
    (F) Final outcome of serious injury determinations for all 
incidents of marine mammal interactions where the animal(s) were 
released alive; and
    (G) A summary of all relevant training provided by the NEFSC and 
any coordination with the Southeast Fishery Science Center, the Greater 
Atlantic Regional Office, and the Southeast Regional Office, NMFS.
    (f) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the specified activity clearly 
causes the take of a large whale (i.e., entanglement or ship strike) or 
if the NEFSC and/or its cooperating institutions observe a carcass 
entangled in gear or struck by any vessel, the NEFSC and/or its 
cooperating institutions must immediately report the incident to 866-
755-6622 in the Northeast region (VA-ME) and 877-WHALE-HELP in the 
Southeast region (FL-NC). If personnel are unable to call these 
numbers, personnel must contact the United States Coast Guard (USCG). 
For active entanglements, NEFSC personnel and/or its cooperating 
institutions are not allowed to remove any gear until they

[[Page 53089]]

receive a temporary authorization from NMFS.
    (2) In the unanticipated event that the activity defined in Sec.  
219.31(a) clearly causes the take of a marine mammal in a prohibited 
manner, NEFSC and/or its cooperating institution 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 NEFSC Director (or designee). For large whales, the NEFSC 
and/or its cooperating institutions must first contact the hotline 
numbers or the USCG as outlined in paragraph (f)(1) of this section. 
The NEFSC must also report the incident immediately to OPR, the Greater 
Atlantic Regional Stranding Coordinator, and the Southeast Regional 
Stranding Coordinator, NMFS. OPR will review the circumstances of the 
prohibited take and work with NEFSC to determine what measures are 
necessary to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. The report must include the following 
information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (including wind speed and direction, 
Beaufort sea state, cloud cover, and 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).
    (3) In the event that NEFSC and/or its cooperating institutions 
discover an injured or dead marine mammal and determines that the cause 
of the injury or death is unknown and the death is relatively recent 
(e.g., in less than a moderate state of decomposition), NEFSC shall 
immediately report the incident to OPR, the Greater Atlantic Regional 
Stranding Coordinator, and the Southeast Regional Stranding 
Coordinator, NMFS. For large whales, the NEFSC and/or its cooperating 
institutions must first contact the hotline numbers or the USCG as 
outlined in paragraph (f)(1) of this section. The report must include 
the same information identified in paragraph (f)(2) of this section. 
Activities may continue while OPR reviews the circumstances of the 
incident. OPR will work with NEFSC to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (4) In the event that NEFSC and/or its cooperating institutions 
discover 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.  219.31(a) (e.g., previously wounded animal, carcass 
with moderate to advanced decomposition, scavenger damage), NEFSC shall 
report the incident to OPR, the Greater Atlantic Regional Stranding 
Coordinator, and the Southeast Regional Stranding Coordinator, NMFS 
within 24 hours of the discovery. For large whales, the NEFSC and/or 
its cooperating institutions must first contact the hotline numbers or 
the USCG as outlined in paragraph (f)(1) of this section. NEFSC shall 
provide photographs or video footage or other documentation of the 
stranded animal sighting to OPR, the Greater Atlantic Regional 
Stranding Coordinator, and the Southeast Regional Stranding 
Coordinator, NMFS.


Sec.  219.37  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, NEFSC must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, NEFSC may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, NEFSC must apply 
for and obtain a modification of the LOA as described in Sec.  219.38.
    (e) The LOA 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.  219.38  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
219.37 for the activity identified in Sec.  219.31(a) shall be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) OPR determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in in paragraph (c)(1) of this section) that do not change 
the findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), OPR may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
219.37 for the activity identified in Sec.  219.31(a) 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 NEFSC regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from NEFSC's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (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

[[Page 53090]]

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.  219.32(b), an LOA may be modified 
without prior notice or opportunity for public comment. Notice would be 
published in the Federal Register within thirty days of the action.


Sec. Sec.  219.39--219.40  [Reserved]

[FR Doc. 2016-18739 Filed 8-10-16; 8:45 am]
 BILLING CODE 3510-22-P