Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Pacific Islands Fisheries Science Center Fisheries Research, 15298-15359 [2021-05128]

Download as PDF 15298 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 219 [Docket No. 210301–0032] RIN 0648–BG31 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Pacific Islands Fisheries Science Center Fisheries Research National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: NMFS’s Office of Protected Resources (OPR) has received a request from NMFS’s Pacific Islands Fisheries Science Center (PIFSC) for a Letter of Authorization (LOA) to take marine mammals incidental to fisheries research conducted in multiple specified geographical regions, over the course of five years from the date of issuance. As required by the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision. DATES: Comments and information must be received no later than April 21, 2021. ADDRESSES: You may submit comments on this document, identified by NOAA– NMFS–2021–0026, by the following method: • Electronic submission: Submit all public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov and enter NOAA– NMFS–2021–0026 in the Search box. Click on the ‘‘Comment’’ icon, complete the required fields, and enter or attach your comments. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will jbell on DSKJLSW7X2PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/A’’ in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Mitigation’’ section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent LOAs. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements. Availability A copy of PIFSC’s application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.fisheries.noaa.gov/action/ incidental-take-authorization-noaafisheries-pifsc-fisheries-and-ecosystemresearch. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT). Summary of Major Provisions Within the Proposed Rule Following is a summary of the major provisions of this proposed rule regarding PIFSC fisheries research activities. These measures include: • Monitor the sampling areas to detect the presence of marine mammals before and during deployment of certain research gear; • Delay setting or haul in gear if marine mammal interaction may occur; • Haul gear immediately if marine mammals may interact with gear; and • Required implementation of the mitigation strategy known as the ‘‘moveon rule mitigation protocol’’ which incorporates best professional judgment, when necessary during certain research fishing operations. Purpose and Need for Regulatory Action This proposed rule would establish a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of marine mammals incidental to the PIFSC’s fisheries research activities in the Hawaiian Archipelago, Mariana Archipelago, American Samoa Archipelago, and Western and Central Pacific Ocean. We received an application from the PIFSC requesting five-year regulations and LOA to take multiple species of marine mammals. Take would occur by Level B harassment incidental to the use of active acoustic devices, as well as by visual disturbance of pinnipeds, and by Level A harassment, serious injury, or mortality incidental to the use of fisheries research gear. Please see ‘‘Background’’ below for definitions of harassment. Legal Authority for the Proposed Action Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the ‘‘least practicable adverse impact’’ on the affected species or stocks and their habitat (see the discussion below in the ‘‘Proposed PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Background Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made, regulations are issued, and notice is provided to the public. An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. The MMPA states that the term ‘‘take’’ means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. E:\FR\FM\22MRP2.SGM 22MRP2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules 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). jbell on DSKJLSW7X2PROD with PROPOSALS2 National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must evaluate our proposed action (i.e., the promulgation of regulations and subsequent issuance of incidental take authorization) and alternatives with respect to potential impacts on the human environment. Accordingly, NMFS has prepared a draft Environmental Assessment (EA; Draft Programmatic Environmental Assessment for Fisheries and Ecosystem Research Conducted and Funded by the Pacific Islands Fisheries Science Center) to consider the environmental impacts associated with the PIFSC’s proposed activities as well as the issuance of the regulations and subsequent incidental take authorization. A notice of availability of a Draft Programmatic EA and request for comments was published in the Federal Register on December 4, 2015 (80 FR 75856). The draft EA is posted online at: www.fisheries.noaa.gov/action/ incidental-take-authorization-noaafisheries-pifsc-fisheries-and-ecosystemresearch. Information in the EA, PIFSC’s application, and this document collectively provide the environmental information related to proposed issuance of these regulations and subsequent incidental take authorization for public review and comment. We will review all comments submitted in response to this document prior to concluding our NEPA process or making a final decision on the request for incidental take authorization. Summary of Request On November 30, 2015, we received an adequate and complete application from PIFSC requesting authorization to take small numbers of marine mammals incidental to fisheries research activities. On December 7, 2015 (80 FR 75997), we published a notice of receipt of PIFSC’s application in the Federal Register, requesting comments and VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 15299 Description of the Specified Activity the primary responsibility for managing marine finfish and shellfish species and their habitats, with that responsibility delegated within NOAA to NMFS. In order to direct and coordinate the collection of scientific information needed to make informed fishery management decisions, Congress created six regional fisheries science centers, each a distinct organizational entity and the scientific focal point within NMFS for region-based Federal fisheries-related research. This research is aimed at monitoring fish stock recruitment, abundance, survival and biological rates, geographic distribution of species and stocks, ecosystem process changes, and marine ecological research. The PIFSC is the research arm of NMFS in the Pacific Islands region of the United States. The PIFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in the geographic research area described below and provides scientific information to support the Western Pacific Fishery Management Council and other domestic and international fisheries management organizations. The PIFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. PIFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. Such research may also be conducted by cooperating scientists on non-NOAA vessels when the PIFSC helps fund the research. The PIFSC proposes to administer and conduct approximately 19 survey programs over the five-year period, within four separate research areas (some survey programs are conducted across more than one research area; see Table 1–1 in PIFSC’s application). The gear types used fall into several categories: Towed trawl nets fished at various levels in the water column, hook-and-line gear (including longline gear), traps, and other instruments. Only use of trawl nets, longlines, and deployed instruments and traps are likely to result in interaction with marine mammals via entanglement. Many of these surveys also use active acoustic devices that may result in Level B harassment. Overview The Federal Government has a responsibility to conserve and protect living marine resources in U.S. waters and has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside the United States. NOAA has Dates and Duration The specified activity may occur at any time during the five-year period of validity of the proposed regulations. Dates and duration of individual surveys are inherently uncertain, based on congressional funding levels for the PIFSC, weather conditions, or ship contingencies. In addition, cooperative information related to the PIFSC request for thirty days. We received comments jointly from The Humane Society of the United States and Whale and Dolphin Conservation (HSUS/WDC). These comments were considered in development of this proposed rule and are available online at: www.fisheries.noaa.gov/action/ incidental-take-authorization-noaafisheries-pifsc-fisheries-and-ecosystemresearch. While it has been multiple years since the PIFSC’s application was received, the description of the activity remains accurate. Further, science and information necessary to evaluate this request that has become available since the PIFSC submitted their application has been considered and is addressed in this proposed rule. PIFSC proposes to conduct fisheries research using trawl gear used at various levels in the water column, hook-andline gear (including longlines with multiple hooks, bottomfishing, and trolling), and deployed instruments (including various traps). If a marine mammal interacts with gear deployed by PIFSC, the outcome could potentially be Level A harassment, serious injury (i.e., any injury that will likely result in mortality), or mortality. Although any given gear interaction could result in an outcome less severe than mortality or serious injury, we do not have sufficient information to allow parsing these potential outcomes. Therefore, PIFSC presents a pooled estimate of the number of potential incidents of gear interaction and, for analytical purposes we assume that gear interactions would result in serious injury or mortality. PIFSC also uses various active acoustic while conducting fisheries research, and use of some of these devices has the potential to result in Level B harassment of marine mammals. Level B harassment of pinnipeds hauled out may also occur, as a result of visual disturbance from vessels conducting PIFSC research. PIFSC requests authorization to take individuals of 15 species by Level A harassment, serious injury, or mortality (hereafter referred to as M/SI) and of 25 species by Level B harassment. The proposed regulations would be valid for five years from the date of issuance. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\22MRP2.SGM 22MRP2 15300 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 research is designed to provide flexibility on a yearly basis in order to address issues as they arise. Some cooperative research projects last multiple years or may continue with modifications. Other projects only last one year and are not continued. Most cooperative research projects go through an annual competitive selection process to determine which projects should be funded based on proposals developed by many independent researchers and fishing industry participants. PIFSC survey activity occurs during most months of the year. Trawl surveys occur primarily during May through June and September but may occur during any month, and hook-and-line surveys generally occur during fall. Specified Geographical Region The PIFSC conducts research in the Pacific Islands within four research areas: The Hawaiian Archipelago Research Area (HARA), the Mariana Archipelago Research Area (MARA), the American Samoa Archipelago Research Area (ASARA), and the Western and Central Pacific Research Area (WCPRA). The first three research areas are considered to extend approximately 24 nautical miles (nmi; 44.5 kilometers (km)) from the baseline of the respective archipelagos (i.e., approximately the outer limit of the contiguous zone). The WCPRA is considered to include the remainder of archipelagic U.S. Exclusive Economic Zone (EEZ) waters, the high seas between the archipelagic U.S. EEZ waters, and waters around the Pacific remote islands. Please see Figures 1.2 and 2.1 through 2.4 in the PIFSC application for maps of the four research areas. We note here that, while the specified geographical regions within which the PIFSC operates may extend outside of the U.S. EEZ, the NMFS’ authority under the MMPA does not extend into foreign territorial waters. For further information about the specified geographical regions, please see the descriptions found in Sherman and Hempel (2009) and Wilkinson et al. (2009). In general, the Pacific region encompassing the PIFSC research areas is a complex oceanographic system. The equatorial area has relatively steady weather patterns and surface currents, but these can change based on oceanatmospheric conditions. The El Nin˜oSouthern Oscillation (ENSO) largely drives the climate in the tropical Pacific (Wood et al., 2006), with warm El Nin˜o or cold La Nin˜a phases, occurring every 2–7 years, impacting equatorial upwelling and ecological systems (Barber, 1988; Glynn and Ault, 2000). ENSO results in the reduction of trade VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 winds, which reduces the intensity of the westward flowing equatorial surface current. When this occurs, the eastwardflowing countercurrent dominates oceanic circulation and brings warm, low-nutrient waters to eastern margins of the Pacific, which in turn can influence marine mammal presence. Trade winds play a vital role in dictating sea level, thermal conditions, and nutrient distribution (Wytki and Meyers, 1976). Habitat throughout the four specified geographical regions include seamounts, atolls, reef habitat, and pelagic waters. Oceanic islands generally lack an extensive shelf area of relatively shallow water extending beyond the shoreline. Instead, most often have a deep reef slope, angled between 45 and 90 degrees toward the ocean floor. Species compositions along deep reef slopes, banks, and seamounts all can vary widely based on depth, light, temperature, and substrate. HARA—The Hawaiian Archipelago is one of the most geographically isolated island systems in the world, stretching over 2,450 km and consisting of eight main volcanic oceanic islands, 124 smaller islands, atolls, banks, and numerous seamounts. The region is considered part of the Insular PacificHawaiian Large Marine Ecosystem (LME). Due to its isolation, the region is characterized overall by relatively low faunal diversity but unusually high endemism. The region is divided into the inhabited Main Hawaiian Islands (the eight high volcanic islands), where many watersheds and nearshore areas have been significantly modified, and the uninhabited Northwestern Hawaiian Islands (NWHI), with some of the most pristine coral reefs in the world. The archipelago is formed by the northwest movement of the Pacific plate over a stationary ‘‘hotspot.’’ The main islands are younger, higher, and more volcanically active, while the NWHI have largely undergone submergence and exist as coral atolls, small sand islands, and submerged banks stretching to Kure Atoll, the northernmost atoll in the world. The major oceanographic influence on the region is the North Equatorial Current, which branches along the Hawaiian Ridge into a North Hawaiian Ridge Current and gyres in the lee of the islands. The region is also seasonally influenced by the Subtropical Front (STF), which corresponds to a shallow subtropical countercurrent that transects the LME in winter and summer (Kobashi et al., 2006). The region has relatively consistent and tropical meteorological and oceanographic conditions, with average sea surface temperatures (SST) PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 of 23–24°C, and is considered to be of low productivity. The region is subject to high wave energy produced from weather systems generated off the Aleutian Islands and other areas of the North Pacific, which can have major effects on nearshore habitat. MARA—The Mariana Archipelago, which is approximately 4,115 km westsouthwest of Hawaii, includes volcanic and raised limestone islands and submerged banks stretching 825 km from Guam Island north to Farallon de Pajaros (which is about 550 km south of Iwo Jima). The region is divided politically into the Commonwealth of the Northern Mariana Islands and the Territory of Guam. The archipelago is flanked by the Mariana Trench, which include the deepest water on Earth (11,034 m) in its southern end near Guam. The archipelago, as well as a chain of submerged seamounts located approximately 120 nmi west of the Mariana Islands, and the trench were formed approximately 43 million years ago by the subduction of the Pacific tectonic plate under the Philippine plate. Geological faulting of large areas in the older southern portion of the region has created large, oblique shallow-water surfaces that have supported extensive reef growth and the development of reef flats and lagoons over time. In contrast, the islands in the north are younger with more vertical profiles that do not provide the basis for extensive reef development. As a result, this spectrum of physical conditions creates a suite of different habitats that in turn support a variety of biological communities. The primary surface current affecting the region is the North Equatorial Current, which flows westward through the islands; however, the Subtropical Counter Current also influences the Northern Mariana Islands and generally flows in a easterly direction. SST ranges from approximately 27–29°C. ASARA—The American portion of the Samoan Archipelago, approximately 14° south of the equator, includes five volcanic islands and two remote atolls within the U.S. EEZ (the broader Samoan Archipelago also includes islands in the independent country of Samoa and the French protectorate of Wallis and Futuna). The largest island, Tutuila, is nearly bisected by Pago Pago Harbor, the deepest and one of the most sheltered embayments in the South Pacific. The primary surface current affecting the region is the Equatorial Current, which flows westward through the islands. The region experiences southeast trade winds that result in frequent rains and a warm tropical climate. E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules WCPRA—In addition to EEZ waters beyond the contiguous zones of the regions described above, the WCPRA also includes the high seas and the Pacific Remote Islands Area, comprised of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Wake Atoll, and Palmyra Atoll. Palmyra Atoll, Kingman Reef, and Baker, Howland, and Jarvis Islands are all part of the U.S. Fish and Wildlife Service’s National Wildlife Refuge System. Howland and Baker Islands are uninhabited U.S. possessions in the Phoenix Island Archipelago. Baker Island is located approximately 21 km north of the equator and approximately 2,963 km to the southwest of Honolulu. It is a coral-topped seamount surrounded by a narrow fringing reef that drops steeply close to shore. Jarvis Island, a relatively flat, sandy coral island, is approximately 2,092 km south of Honolulu and 1,609 km east of Baker Island. Although the westwardflowing South Equatorial Current is the primary surface current, the eastwardflowing Equatorial Undercurrent drives strong, topographically influenced equatorial upwelling in these islands. However, species diversity is much lower than in the Northern Line Islands, reflecting the influence of primary currents that originate in the speciespoor eastern Pacific. Jarvis Island is considered part of the Southern Line Islands, but is biogeographically more similar to Baker and Howland Islands as its primary influence is the South Equatorial Current. Johnston Atoll lies approximately 800 km south of French Frigate Shoals in the NWHI. Johnston Atoll, a coral reef and lagoon complex on a relatively flat, shallow platform, shares biogeographic affinities with the Hawaiian Archipelago, with evidence of larval transport between the two. Because of faunal affinities and because both occur in the oceanic North Pacific Transition Zone Province (Longhurst, 1998), the two areas may be considered part of the same ecoregion. Johnston Atoll has been used for military purposes since World War II. Kingman Reef consists of a series of fringing reefs around a central lagoon that does not have any emergent land to support vegetation. Wake Atoll, comprised of three different islets, is located about 3,380 km west of Hawaii, at the northern end of the Marshall Islands archipelago in the North Pacific Tropical Gyre Province (Longhurst, 1998). Wake Atoll has primarily been used for military and emergency aviation purposes since World War II. VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 Palmyra Atoll (1,956 km south of Honolulu) and Kingman Reef (61 km northwest of Palmyra) are part of the Northern Line Islands (other islands in this archipelago belong to the Republic of Kiribati), and are sporadically influenced by the North Equatorial Countercurrent, which flows from high biodiversity regions of the western Pacific. Palmyra Atoll consists of 52 islets surrounding three central lagoons. Detailed Description of Activities The Federal Government has a trust responsibility to protect living marine resources in waters of the United States. These waters extend to 200 nmi from the shoreline and include the EEZ. The U.S. government has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside of the EEZ (i.e., the high seas). To carry out its responsibilities over U.S. and international waters, Congress has enacted several statutes authorizing certain Federal agencies to administer programs to manage and protect living marine resources. Among these Federal agencies, NOAA has the primary responsibility for protecting marine finfish and shellfish species and their habitats. Within NOAA, NMFS has been delegated primary responsibility for the science-based management, conservation, and protection of living marine resources under statutes including the Magnuson-Stevens Fishery Management Act (MSA), MMPA, and the Endangered Species Act (ESA). Within NMFS, six regional fisheries science centers direct and coordinate the collection of scientific information needed to inform fisheries management decisions. Each science center is a distinct entity and is the scientific focal point for a particular region. PIFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in the Pacific Islands. PIFSC provides scientific information to support the Western Pacific Fishery Management Council and other domestic and international fisheries management organizations. The PIFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. PIFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels, and some PIFSC-funded research is conducted by cooperative scientists. The PIFSC proposes to administer and conduct approximately 19 survey programs over the five-year period (see Table 1.1 in PIFSC’s application). PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 15301 Given the vast geographic scope of the PIFSC region of responsibility, not all areas will be visited each year (nor will all surveys be conducted each year) within the five-year period the proposed regulations and LOA would be effective. Instead, surveys will rotate depending on funding, random sampling design, or immediate research needs. Research surveys are generally focused on one research area every year and that research area is visited every second, third, or fourth year. For example, over the course of five years, this research cycle might be presented as HARA→ ASARA→MARA→WCPRA→HARA. This cycle inherently includes some overlap of any one research area (e.g., Wake Atoll in the WCPRA is usually visited when the ship is transiting to MARA because it is on the way and makes for the most cost-efficient model). Furthermore, a specific survey may be prioritized every year, for several years in a row, in one research area because of a defined management need. In general, each research area coverage depends on funding, ship logistics, weather systems, research priorities, and geographic coverage during ship transit. Research is conducted more frequently in the HARA due to PIFSC’s physical location in the main Hawaiian Islands. The fishing gear types used by PIFSC fall into several categories: towed nets fished at various levels in the water column, hook-and-line gear, and traps. The PIFSC also deploys a variety of moored instruments. The use of trawl nets and longlines is likely to result in interaction with marine mammals. In addition, the PIFSC anticipates that its deployment of instruments and traps may result in the entanglement of some animals. Many of the proposed surveys also use active acoustic devices that may result in Level B harassment. Surveys may be conducted aboard NOAA-operated research vessels (R/V), including the Oscar Elton Sette and Okeanos Explorer, as well as the University of Hawai1i research vessel Ka’imikai-o-Kanoloa (KoK) and assorted other small vessels owned by PIFSC. Surveys could also be conducted aboard vessels owned and operated by cooperating agencies and institutions, or aboard charter vessels. In the following discussion, we summarily describe various gear types used by PIFSC, with reference to specific fisheries and ecosystem research activities conducted by the PIFSC. This is not an exhaustive list of gear and/or devices that may be utilized by PIFSC but is representative of gear categories and is complete with regard to all gears with potential for interaction E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15302 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules with marine mammals. Additionally, relevant active acoustic devices, which are commonly used in PIFSC survey activities, are described separately in a subsequent section. Please see Appendix A of PIFSC’s application for further description, pictures, and diagrams of research gear and vessels. Full details regarding planned research activities are provided in Table 1.1 of PIFSC’s application, with specific gear used in association with each research project and full detail regarding gear characteristics and usage provided. A summary of PIFSC’s proposed research programs that may result in take from interaction with fishing gear is provided below (Table 1). Trawl nets—A trawl is a funnelshaped net towed behind a boat to capture fish. The codend (or bag) is the fine-meshed portion of the net most distant from the towing vessel where fish and other organisms larger than the mesh size are retained. In contrast to commercial fishery operations, which generally use larger mesh to capture marketable fish, research trawls often use smaller mesh to enable estimates of the size and age distributions of fish in a particular area. The body of a trawl net is generally constructed of relatively coarse mesh that functions to gather schooling fish so that they can be collected in the codend. The opening of the net, called the mouth, is extended horizontally by large panels of wide mesh called wings. The mouth of the net is held open by hydrodynamic force exerted on the trawl doors attached to the wings of the net. As the net is towed through the water, the force of the water spreads the trawl doors horizontally apart. The top of a net is called the headrope, and the bottom is called the footrope. Bottom trawls may use bobbins or roller gear to protect the footrope as the net is dragged along the seabed. The trawl net is usually deployed over the stern of the vessel and attached with two cables (or warps) to winches on the deck of the vessel. The cables are played out until the net reaches the fishing depth. Trawl vessels typically travel at speeds of 2–5 knots (kt) while towing the net for time periods up to several hours. The duration of the tow depends on the purpose of the trawl, the catch rate, and the target species. At the end of the tow the net is retrieved and the contents of the codend are emptied onto the deck. For research purposes, the speed and duration of the tow and the characteristics of the net are typically standardized to allow meaningful comparisons of data collected at different times and locations. Active acoustic devices VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 (described later) incorporated into the research vessel and the trawl gear monitor the position and status of the net, speed of the tow, and other variables important to the research design. PIFSC research trawling activities utilize pelagic (or midwater) and surface trawls, which are designed to operate at various depths within the water column but not to contact the seafloor. Commercial midwater trawls may be 75–136 m in width with opening height of 10–20 m; however, PIFSC uses smaller research trawls. These include a modified Cobb midwater trawl, the Isaacs-Kidd (IK) trawl, and various other small-mesh nets used as surface trawls. The Cobb trawl is generally used to target snapper and grouper species within the 0–250 m depth range, and has a mouth opening of 686 m2. The IK trawl is used to collect midwater or surface biological specimens larger than those taken by standard plankton nets. The PIFSC uses two sizes of IK trawls for various research purposes, a 6-ft (1.8-m) wide model and a 10-ft (3.0-m) wide model. These nets may be towed either at the surface of the water or at various midwater depths depending on research protocols or where acoustic signals indicate the presence of study organisms. Tow durations are typically 30–60 min for small-mesh surface tows, 60 min for IK surface tows, or 60–240 min for midwater tows, with midwater tow depths varied during a tow to target fish at different water depths. PIFSC trawls are typically towed at 2.5–3.5 kt. Longline—Longline vessels fish with baited hooks attached to a mainline. The length of the longline and the number of hooks depend on the species targeted, the size of the vessel, and the purpose of the fishing activity. Pelagic longlines, which fish near the surface with the use of floats, may be deployed in such a way as to fish at different depths in the water column. For example, deep-set longlines targeting tuna may have target depths greater than 100 m, while a shallow-set longline targeting swordfish is set at depths shallower than 100 m (see Figure A–7 of PIFSC’s application). Hooks are attached to the mainline by another thinner line called a gangion or branch line. The length of the gangion and the distance between gangions depends on the purpose of the fishing activity. PIFSC uses pelagic longline gear, which is deployed near the surface of the water, with buoys attached to the mainline to provide flotation and keep the baited hooks suspended in the water. Radar reflectors, radio transmitters, and light sources are often used to help fishers determine the PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 location of the longline gear prior to retrieval. A commercial longline can be miles long and have thousands of hooks attached. Although longlines used for research surveys are often shorter, the PIFSC uses some commercial-scale longlines, i.e., 600 to 2,000 hooks attached to a mainline up to 60 miles in length. There are no internationallyrecognized standard measurements for hook size, and a given size may be inconsistent between manufacturers. Larger hooks, as are used in longlining, are referenced by increasing whole numbers followed by a slash and a zero as size increases (e.g., 1⁄0 up to 20/0). The numbers represent relative sizes, normally associated with the gap (the distance from the point tip to the shank). The time period between deployment and retrieval of the longline gear is the soak time. Soak time is an important parameter for calculating fishing effort. For commercial fisheries the goal is to optimize the soak time in order to maximize catch of the target species while minimizing the bycatch rate and minimizing damage to target species that may result from predation by sharks or other predators. PIFSC pelagic longline soak times range from 600– 1,800 min. Other hook and line gear—Hook and line is a general term used for a range of fishing methods that employ short fishing lines with hooks in one form or another (as opposed to longlines). This gear is similar to methods commonly used by recreational fishers and may generally include handlines, hand reels, powered reels, rod/pole and line, drop lines, and troll lines, all using bait or lures in various ways to attract target species. The gear used in PIFSC bottomfish surveys consists of a main line with a 2–4 kg weight attached to the end. Several 40–60 cm sidelines with circle hooks are attached above the weight at 0.5–1 m intervals. A chum bag containing chopped fish or squid may be suspended above the highest of these hooks. Dead fish and bait would not be discarded from the vessel while actively fishing and would only be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area. The gear is retrieved using hydraulic or electric reels after several fish are hooked. Another hook-and-line fishing method is trolling where multiple lines are towed behind a boat. Trolling gear used by the PIFSC have four troll lines each with 1–2 baited hooks towed at 4–6 kt. Other nets—PIFSC surveys utilize various small, fine-mesh, towed nets and neuston nets designed to sample E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules small fish and pelagic invertebrates. These nets can be broadly categorized as small trawls (which are separated from large trawl nets due to small trawls’ discountable potential for interaction with marine mammals; see ‘‘Potential Effects of the Specified Activity on Marine Mammals and their Habitat’’) and plankton nets. 1. Neuston nets are used to collect zooplankton that live in the top few centimeters of the sea surface (the neuston layer). These nets have a rectangular opening usually two or three times as wide as deep (e.g., one meter by 0.5 meters or 60 centimeters by 20 centimeters). Neuston nets sometimes use hollow piping for construction of the net frame to aid in flotation. They are generally towed half submerged at 1–2 kt from the side of a vessel on a boom to avoid the ship’s wake. 2. Ring nets are used to capture plankton with vertical tows. These nets consist of a circular frame and a coneshaped net with a collection jar at the codend. The net, attached to a labeled dropline, is lowered into the water while maintaining the net’s vertical position. When the desired depth is reached, the net is pulled straight up through the water column to collect the sample. The most common zooplankton ring net is one meter in diameter with 0.333 millimeter mesh openings, also known as a ‘meter net.’ 3. Plankton drop nets are small handheld nets made up of fine mesh attached to a metal hoop with a long rope attached for retrieval. These nets are used for stationary sampling of the surrounding water. 4. Bongo nets are towed through the water at an oblique angle to sample plankton over a range of depths. Similar to ring nets, these nets typically have a cylindrical section coupled to a conical portion that tapers to a detachable codend constructed of nylon mesh. During each plankton tow, the bongo nets are deployed to depth and are then retrieved at a controlled rate so that the volume of water sampled is uniform across the range of depths. A collecting bucket, attached to the codend of the net, is used to contain the plankton sample. Some bongo nets can be opened and closed using remote control to enable the collection of samples from particular depth ranges. A group of depth-specific bongo net samples can be used to establish the vertical distribution of zooplankton species in the water column at a site. Bongo nets are generally used to collect zooplankton for research purposes and are not used for commercial harvest. Traps—Traps are submerged, threedimensional devices, often baited, that VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 permit organisms to enter the enclosure but make escape extremely difficult or impossible. Most traps are attached by a rope to a buoy on the surface of the water and may be deployed in series. The trap entrance can be regulated to control the maximum size of animal that can enter, and the size of the mesh in the body of the trap can regulate the minimum size that is retained. In general, the species caught depends on the type and characteristics of the pot or trap used. PIFSC uses lobster traps, crab traps, and other traps of various sizes. Lobster traps are deployed in the NWHI to study the life history and population dynamics of lobster. The lobster traps consist of one string per site, with 8 or 20 traps per string, separated by 20 fathoms of ground line. The traps are deployed within two separate depth regimes: 10–20 or 21–35 fathoms. Kona crab traps are nylon, with meshing spaced 21⁄2 inches apart attached to a wire ring with squid or fish bait set in the middle. Up to ten nets can be tied together with a buoy on the end net for retrieval. They are left for approximately 20 min. Settlement traps are cylindrical with dimensions up to 3 m long and 2 m diameter. The trap frame is composed of semi-rigid plastic mesh of up to 5 cm mesh size. Folded plastic of up to 10 cm mesh is stuffed inside as settlement habitat, and cylinder ends are then pinched shut. The traps are clipped throughout the water column onto a vertical line anchored on bottom at up to 400 m, supported by a surface float. Conductivity, temperature, and depth profilers—A CTD profiler is the primary research tool for determining chemical and physical properties of seawater. A shipboard CTD is made up of a set of small probes attached to a large (1–2 m diameter) metal rosette wheel. The rosette is lowered through the water column on a cable, and CTD data are observed in real time via a conducting cable connecting the CTD to a computer on the ship. The rosette also holds a series of sampling bottles that can be triggered to close at different depths in order to collect a suite of water samples that can be used to determine additional properties of the water over the depth of the CTD cast. A standard CTD cast, depending on water depth, requires two to five hours to complete. The data from a suite of samples collected at different depths are often called a depth profile. Depth profiles for different variables can be compared in order to glean information about physical, chemical, and biological processes occurring in the water column. Salinity, temperature, and depth data measured by the CTD PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 15303 instrument are essential for characterization of seawater properties. Expendable bathythermographs (XBT)—PIFSC also uses XBTs to provide ocean temperature versus depth profiles. A standard XBT system consists of an expendable probe, a data processing/recording system, and a launcher. An electrical connection between the probe and the processor/ recorder is made when the canister containing the probe is placed within the launcher and the launcher breech door is closed. Following launch into the water, wire de-reels from the probe as it descends vertically through the water. Simultaneously, wire de-reels from a spool within the probe canister, compensating for any movement of the ship and allowing the probe to freefall from the sea surface unaffected by ship motion or sea state. Remotely operated vehicles (ROV)— ROVs are used to count fish and shellfish, photograph fish for identification, and provide views of the bottom for habitat-type classification studies via still and video camera images. Precise georeferenced data from ROV platforms also enables SCUBA divers to utilize bottom time more effectively for collection of brood stock and other specimens. PIFSC also uses various other platforms, including gliders, towed systems, and seafloor or moored packages, to conduct passive acoustic monitoring, collect oceanographic data, and collect photographic/video data, among other things. Many such deployments require the use of mooring lines, including the Bottom Camera system (BotCam), Modular Underwater Survey System (MOUSS), Baited Remote Underwater Video System (BRUVS), Underwater Sound Playback System, and High-Frequency Acoustic Recording (HARP) package. Table 1.1 of the PIFSC’s application provide detailed information of all surveys planned by PIFSC; full detail is not repeated here. Below, we provide brief summaries of a selection of surveys using gear expected to have potential for marine mammal interaction (Table 1). Many of these surveys also use small trawls, plankton nets, gear deployed by hand by divers, and/or other gear; however, only gear with likely potential for marine mammal interaction is described. These summaries illustrate projected annual survey effort in the different research areas for those gears that we believe present the potential for marine mammal interaction but are intended only to provide a sense of the level of effort, and actual level of effort may vary from year to year. Gear specifications vary; please see Table 1.1 E:\FR\FM\22MRP2.SGM 22MRP2 15304 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 of PIFSC’s application for descriptions of representative equipment. All surveys generally may occur every year in the VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 HARA, but approximately once every three years in the MARA, ASARA, and WCPRA. Figures 2.1–2.4 of PIFSC’s PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 application illustrate locations of past survey effort in each of the four research areas. E:\FR\FM\22MRP2.SGM 22MRP2 VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\22MRP2.SGM Early life history studies provide larval stages for population genetic studies and include the characterization of habitat for early life stages of pelagic species. Egg and larval collections are taken in surface waters using a variety of plankton gear, primarily IsaacKidd 6-foot surface trawl, but also sometimes including 1meter ring net and surface neuston net.. Survey transects conducted in conjunction with cetacean visual and acoustic surveys within the Hawai‘i EEZ to develop ecosystem models for cetaceans. Sampling also includes active acoustics to determine relative biomass density of sound scattering layers; trawls to sample within the scattering layers; cetacean observations; surface and water column oceanographic measurements and water sample collection.. Spawning Dynamics of Highly Migratory Species. Cetacean Ecology Assessment. Surface and midwater plankton tows to quantify floating microplastic in seawater. Results of sampling inform life history and stock structure studies for pelagic larval and juvenile stage specimens of insular fish. Additional habitat information is also collected. Target species are snapper, grouper, and coral reef fish species within the 0–175 m depth range.. Sampling Pelagic Stages of Insular Fish Species. Marine Debris Research and Removal. Survey description Survey name • Year-round. ............................. • HARA: up to 25 DAS. ............. • MARA, ASARA, WCPRA: up to 25 DAS approximately once in research area every three years.. • Surface trawls are conducted day and night.. • HARA, MARA, ASARA, WCPRA. • 1–25 nmi from shore • HARA, MARA, ASARA, WCPRA. • Annually, or on an as- needed basis, up to 30 DAS. • Surface trawls are conducted day and night. • UAS are conducted during the day or night. • Variable timing, depending on ship availability, up to 180 DAS. • Usually conducted in non-winter months. • Midwater trawls are conducted at night, surface trawls are conducted day and night. • Year-round .............................. • HARA: up to 20 Days at Sea (DAS). • MARA, ASARA, WCPRA: up to 30 DAS. approximately once in research area every three years. • Midwater trawls are conducted at night, surface trawls are conducted day and night. • HARA, MARA, ASARA, WCPRA. • 3–200 nmi from shore • HARA, MARA, ASARA, WCPRA. Season, frequency & yearly days at sea (DAS) General area of operation • Neuston, or similar, plankton nets surface towed alongside ship and/or small boats. • Cobb trawl (midwater trawl). • Small-mesh towed net (surface trawl). • Isaacs-Kidd 6-foot net (surface) Neuston tows (surface) 1-m ring net (surface). • Isaacs-Kidd 6-ft net (surface trawl). • Dip net (surface) ........ • Trawl mounted OES Netmind (midwater). • Cobb trawl (midwater trawl) or Isaacs-Kidd 10-foot (ft) net (midwater trawl). Gear used Tow speed: 3 kts ..................... Duration: 60–240 min .............. Tow Speed: 2.5–3.5 kts .......... Duration: 30–60 min ................ Tow speed: 2.5–3.5 kts ........... Duration: 60 min ...................... Depth: Surface ........................ Tow Speed: 2.5–3.5 kts .......... Duration: 30–60 min ................ Depth: 0–3 m .......................... • Tow Speed: varied .................. • Duration: <1 hour .................... • • • • • • • • • • • Tow speed: 2.5–3.5 kt ............ • Duration: 60–240 minutes (min). • Depth: deployed at various depths during same tow to target fish at different water depths, usually to 250 m. • Tow speed: 2.5–3.5 kts ........... • Duration: 60 min ...................... • Depth: Surface ........................ Gear details • Up to 250 tows per survey per year. • 180 tows total per year. • 180 tows per research area. • 140 tows per survey per year • 140 tows per survey per year. • 40 tows per survey per year. • 40 tows per survey per year. Total number of samples (approximated) TABLE 1—SUMMARY DESCRIPTION OF PIFSC FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES IN THE PACIFIC ISLANDS REGION jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules 22MRP2 15305 Provide size ranges of deepwater eteline snappers, groupers, and large carangids to determine sex-specific length-at-age growth curves, longevity estimates, length and age at 50% reproductive maturity within the Bottomfish Management Unit Species (BMUS) in Hawai‘i and the other Pacific Islands regions. Specimens are collected in the field and sampled at markets.. Surveys would be conducted to collect life history and molecular samples from pelagic species. Other target species would be tagged-and-released. Different tags would used depending upon the species and study, but could include: passive, archival, ultrasonic, and satellite tags.. Comparison of fishery-independent methods to survey bottomfish assemblages in the Main Hawaiian Islands: coordinated research between PIFSC and various partners Day and night surveys are used to develop fishery-independent methods to assess stocks of economically important insular fish. Survey transects conducted off the Kona coast and Kohala Shelf area to develop ecosystem models for coral reefs, socioeconomic indicators, circulation patterns, larval fish transport and settlement. Sampling includes active acoustics to determine relative biomass density of sound scattering layers; trawls to sample within the scattering layers; cetacean observations; surface and water column oceanographic measurements and water sample collection.. Pelagic Troll and Handline Sampling. Insular fish Abundance Estimation Comparison Surveys. Kona Integrated Ecosystem Assessment Cruise. Survey description Insular Fish Life History Survey and Studies. Survey name VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00010 Fmt 4701 • HARA; 2–10 nmi from shore. • HARA, MARA, ASARA, WCPRA. Sfmt 4702 • Variable timing, depending on ship availability, up to 10 DAS. • Day and night .......................... • Variable, up to 30 DAS per research area per year. • HARA surveyed annually, ASARA, WCPRA surveyed every 3 years. • Sampling occurs day and night • Variable, up to 14 DAS Day and night. • HARA: July–September, up to 15 DAS/yr. • Other areas: Year-round, up to 30 DAS for each research area once every three years. • Day and night .......................... • HARA, MARA, ASARA, WCPRA. • 0.2–5 nmi from shore • HARA, MARA, ASARA. • 0 to 24 nmi from shore (excluding any special resource areas). Season, frequency & yearly days at sea (DAS) General area of operation • Cobb trawl (midwater trawl). • Hook-and-line ............. • Hook-and-line ............. • Pelagic troll and handline (hook and line) fishing. • Hook-and-line ............. Gear used • Tow speed: 3 kts ..................... • Duration: 60–240 min .............. • Electric or hydraulic reel: Each operation involves 1–3 lines, with squid lures, soaked 10– 60 min at depths between 200m to 600m. • Hand, electric, hydraulic reels. • Each vessel fishes 2 lines. Each line is baited with 4–6 hooks.. • 1–30 minutes per fishing operation.. • Troll fishing with up to 4 troll lines each with 1–2 baited hooks or 1–2 hook trolling lures at 4–10 kts. • Pelagic handline (hook-andline) fishing at 10–100 m midwater depths, with hand, electric, or hydraulic reels. Up to 4 lines. Each line is baited with 4 hooks. • Hand line, electric or hydraulic reel. • Each operation involves 1–3 lines with.4–6 hooks per line; soaked 1–30 min. • Squid bait on circle hooks (typically 10/0 to 12/0). Gear details • No more than 50 hours of effort. • Approximately 10 mesopelagic squid caught per yr. • 15–20 tows/yr. • HARA: 7,680 operations per year. • MARA: 1.920 every 3rd year (average) 640 operations per year). • ASARA: 1,920 every 3rd year (average e 640 per year). • WCPRA: 1,920 every 3rd year (average 640 per year). • A total of up to 2 operations of any of these gear types per DAS, totaling 28 operations (all types combined) for the survey. • HARA: 350 operations per year. • Other areas: 240 operations per year for each research area. Total number of samples (approximated) TABLE 1—SUMMARY DESCRIPTION OF PIFSC FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES IN THE PACIFIC ISLANDS REGION—Continued jbell on DSKJLSW7X2PROD with PROPOSALS2 15306 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules E:\FR\FM\22MRP2.SGM 22MRP2 VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00011 Fmt 4701 Investigate effectiveness of various types of hooks, hook guards, gear configurations, or other modified fishing practices for reducing the bycatch of non-target species and retaining or increasing target catch. Sampling activity to quantify baseline bottomfish and reef fish resources in the Mariana Archipelago Research Area. Various artificial habitat designs, Cobb trawl and IK trawls will be developed, enclosed in mesh used to retain captures, and evaluated collect pelagic-stage specimens of reef fish and bottomfish species. Traps will be primarily set in mesophotic habitats (50–200 m depths) and in the quality of each habitat for recent recruits. deep-slope bottomfish habitats (200–500m depths). Mariana Resource Survey .. Pelagic Longline, Troll, and Handline Gear Trials. Sampling activity to capture juvenile recruits of eteline snappers and grouper that have recently transitioned from the pelagic to demersal habitat. Target species include Deep-7 bottomfish and the settlement habitats these stages are associated with. Sampling of Juvenile-stage Bottomfish via Settlement Traps. jbell on DSKJLSW7X2PROD with PROPOSALS2 • HARA ......................... • Longline fishing would occur outside of: (1) All longline exclusions zones in the Hawai‘i EEZ; (2) the Insular False Killer Whale range, and (3) all special resource areas. • Longline fishing would occur up to approximately 500 nmi from the shores of the Hawai‘i Archipelago. • Trolling and handline occurs 25 to 500 nmi from shore (excluding any special resource areas). • MARA ......................... • 0–25 nmi from shore • HARA ......................... • 0.2–5 nmi from shore • 21 DAS .................................... • Day and night .......................... • May—August Up to 102 DAS (once every three years). • Midwater trawls are conducted at night, surface trawls are conducted day and night. • In-water activities are conducted during the day. All others are day and night. • July–September ...................... • Up to 25 DAS Day and night .. Sfmt 4702 • Soak time: 600–1800 min ....... • Troll fishing with up to 4 troll lines each with 1–2 baited hooks or 1–2 hook troll lures at 4–10 kts. • Pelagic handline (hook-andline) fishing at 10–100 m midwater depths, with hand, electric, or hydraulic reels. Up to 4 lines. Each line is baited with 4 hooks. • Up to 4 hrs per troll or handline operation. • Trolling, and handline (hook-and-line). • Tow speed: 3 kts ..................... • Duration: 60–240 min trawls; 2 tows per night. • Depth(s): deployed at various depths during same tow to target fish at different water depths, usually between 100 m and 200m. • Tow speed: 3 kts ..................... • Duration: up to 60 min ............ • Depth: 0–200 m ...................... • Up to ten Kona crab traps can be tied together with a buoy on the end net for retrieval. They are left for approximately 20 min. Two strings of six enclosure traps each would be deployed at night on sand, rubble and pavement (i.e. not coral) substrate, and retrieved the next morning. • Up to 20 traps per string, separated by 20 fathoms of ground line; two depths 10–35 fathoms. • Up to 2 strings per DAS .......... • Electric or hydraulic reel: each operation involves 1–3 lines, with squid lures, soaked 10– 60 min at depths between 200 m to 600 m. • Cylindrical traps are clipped throughout the water column onto a vertical line anchored on bottom at up to 400 m, supported by a surface float. • Pelagic longline .......... • Small-mesh surface trawl nets (IsaacsKidd, neuston, ring, bongo nets). • Traps (Kona crab, enclosure). • Hook-and-line ............. • Large-mesh Cobb midwater trawl IsaacsKidd midwater trawl. • Trap (settlement) ....... • Up to 21 longline operations per year. • Up to 21 troll or handline (combined) operations per year. • 15–20 tows (any combination of the nets described). • 25 gear sets per cruise. • Up to 400 strings set per year. • 1000 sets per survey. • 15–20 tows per survey per year. • 10 traps per line set; up to 4 line sets soaked per day, from overnight up to 3 days. • Up to 100 lines of traps set per yr. • Catch of 2500 juvenile stage bottomfish per year. Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules E:\FR\FM\22MRP2.SGM 22MRP2 15307 VerDate Sep<11>2014 19:40 Mar 19, 2021 Lagoon Ecosystem Characterization. Pelagic Oceanographic Cruise. Survey name Jkt 253001 Measure the abundance and distribution of reef fish (including juvenile bumphead parrotfish). Investigate physical (e.g., fronts) and biological features that define the habitats for important commercial and protected species of the North Pacific Ocean. Sampling also includes active acoustics to determine relative biomass density of sound scattering layers; trawls to sample within the scattering layers; surface and water column oceanographic measurements and water sample collection. Survey description • Up to 14 DAS .......................... • Conducted during the day ....... • Annual (season variable) Up to 30 DAS. • Midwater trawls are conducted at night, surface trawls are conducted day and night. • All other activities are conducted day and night. • WCPRA ...................... • 25–1000 nmi from shore in any direction. • WCPRA ...................... Season, frequency & yearly days at sea (DAS) General area of operation • Standard rod and reel using lures or fish bait from shoreline or small boat. • Hook-and-line ............. • Duration: up to 60 min. • Depth: 0–200 m ...................... • Small-mesh surface and midwater trawl nets (Isaacs-Kidd, neuston, ring, bongo nets). • SCUBA, snorkel, 12-inch diameter small mesh hand net. • 1 meter diameter plankton drop net would be deployed down to 100 m. • Plankton drop net (stationary surface sampling). • Divers with hand net or speargun. • Tow speed: 3 kts ..................... • Duration: 60–240 min .............. Gear details • Large-mesh Cobb midwater trawl. Gear used • 10 dives per survey. • 10 fin clips collected for genetic analyses. • 1–30 minute casts. • 60 casts per survey. • 20 tows per year, alternating with Kona IEA cruise 4 liters of micronekton per tow. • 20 drops per year (collections would be less than one liter of plankton). • 15–20 tows (any combination of the nets described) <1 liter of organisms per tow. Total number of samples (approximated) TABLE 1—SUMMARY DESCRIPTION OF PIFSC FISHERIES AND ECOSYSTEM RESEARCH ACTIVITIES IN THE PACIFIC ISLANDS REGION—Continued jbell on DSKJLSW7X2PROD with PROPOSALS2 15308 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules Description of Active Acoustic Sound Sources—This section contains a brief technical background on sound, the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to PIFSC’s specified activity and to an understanding of the potential effects of the specified activity on marine mammals found later in this document. We also describe the active acoustic devices used by PIFSC. For general information on sound and its interaction with the marine environment, please see, e.g., Au and Hastings (2008); Richardson et al. (1995); Urick (1983). Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the ‘‘loudness’’ of a sound and is typically described using the relative unit of the decibel (dB). A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (mPa)) and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 mPa), while the received level is the SPL at the listener’s position (referenced to 1 mPa). Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average. Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels. This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures. Peak sound pressure (also referred to as zero-to-peak sound pressure or 0-pk) is the maximum VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 instantaneous sound pressure measurable in the water at a specified distance from the source and is represented in the same units as the rms sound pressure (dB re 1 mPa). Sound exposure level (SEL; represented as dB re 1 mPa2-second) represents the total energy in a stated frequency band over a stated time interval or event, and considers both intensity and duration of exposure. The per-pulse SEL is calculated over the time window containing the entire pulse (i.e., 100 percent of the acoustic energy). SEL is a cumulative metric; it can be accumulated over a single pulse, or calculated over periods containing multiple pulses. Cumulative SEL represents the total energy accumulated by a receiver over a defined time window or during an event. When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams (as for the sources considered here) or may radiate in all directions (omnidirectional sources). The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones. Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following paragraphs). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al. (2007) for an in-depth discussion of these concepts. The distinction between these two sound types is not always obvious, as certain signals share properties of both pulsed and non-pulsed sounds. A signal near a source could be categorized as a pulse; but, due to propagation effects as it moves farther from the source, the signal duration becomes longer (e.g., Greene and Richardson, 1988). Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 15309 decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features. Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or intermittent (ANSI, 1995; NIOSH, 1998). Some of these nonpulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems. The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment. Non-pulsed sounds typically have less capacity to induce physical injury as compared with pulsed sounds. All active acoustic sources used by PIFSC produce nonpulsed intermittent sound. A wide range of active acoustic sources are used in PIFSC fisheries surveys for remotely sensing bathymetric, oceanographic, and biological features of the environment. Most of these sources involve relatively high frequency, directional, and brief repeated signals tuned to provide sufficient focus and resolution on specific objects. PIFSC also uses passive listening sensors (i.e., remotely and passively detecting sound rather than producing it), which do not have the potential to impact marine mammals. PIFSC active acoustic sources include various echosounders (e.g., multibeam systems), scientific sonar systems, positional sonars (e.g., net sounders for determining trawl position), and environmental sensors (e.g., current profilers). Mid- and high-frequency underwater acoustic sources typically used for scientific purposes operate by creating an oscillatory overpressure through rapid vibration of a surface, using either electromagnetic forces or the piezoelectric effect of some materials. A vibratory source based on the piezoelectric effect is commonly referred to as a transducer. Transducers are usually designed to excite an acoustic wave of a specific frequency, often in a highly directive beam, with the directional capability increasing with operating frequency. The main parameter characterizing directivity is the beam width, defined as the angle subtended by diametrically opposite ‘‘half power’’ (¥3 dB) points of the main lobe. For different transducers at a single operating frequency the beam E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15310 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules width can vary from 180° (almost omnidirectional) to only a few degrees. Transducers are usually produced with either circular or rectangular active surfaces. For circular transducers, the beam width in the horizontal plane (assuming a downward pointing main beam) is equal in all directions, whereas rectangular transducers produce more complex beam patterns with variable beam width in the horizontal plane. The types of active sources employed in fisheries acoustic research and monitoring, based largely on their relatively high operating frequencies and other output characteristics (e.g., signal duration, directivity), should be considered to have very low potential to cause effects to marine mammals that would rise to the level of a ‘‘take,’’ as defined by the MMPA. Acoustic sources operating at high output frequencies (≤ 180 kHz) that are outside the known functional hearing capability of any marine mammal are unlikely to be detected by marine mammals. Although it is possible that these systems may produce subharmonics at lower frequencies, this component of acoustic output would also be at significantly lower SPLs. While the production of subharmonics can occur during actual operations, the phenomenon may be the result of issues with the system or its installation on a vessel rather than an issue that is inherent to the output of the system. Many of these sources also generally have short duration signals and highly directional beam patterns, meaning that any individual marine mammal would be unlikely to even receive a signal that would likely be inaudible. Acoustic sources present on most PIFSC fishery research vessels include a variety of single, dual, and multi-beam echosounders (many with a variety of modes), sources used to determine the orientation of trawl nets, and several current profilers with lower output frequencies that overlap with hearing ranges of certain marine mammals (e.g., 30–180 kHz). However, while likely potentially audible to certain species, these sources also have generally short ping durations and are typically focused (highly directional) to serve their intended purpose of mapping specific objects, depths, or environmental features. These characteristics reduce the likelihood of an animal receiving or perceiving the signal. A number of these sources, particularly those with relatively lower output frequencies coupled with higher output levels can be operated in different output modes (e.g., energy can be distributed among multiple output beams) that may lessen the likelihood of perception by and VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 potential impact on marine mammals; however, we have analyzed the effects of these sources under the assumption that they will be operating at frequencies and energy outputs that are most likely to be detected by marine mammals and may result in Level B harassment. We now describe specific acoustic sources used by PIFSC. The acoustic system used during a particular survey is optimized for surveying under specific environmental conditions (e.g., depth and bottom type). Lower frequencies of sound travel further in the water (i.e., longer range) but provide lower resolution (i.e., less precision). Pulse width and power may also be adjusted in the field to accommodate a variety of environmental conditions. Signals with a relatively long pulse width travel further and are received more clearly by the transducer (i.e., good signal-to-noise ratio) but have a lower range resolution. Shorter pulses provide higher range resolution and can detect smaller and more closely spaced objects in the water. Similarly, higher power settings may decrease the utility of collected data. For example, power level is adjusted according to bottom type, as some bottom types have a stronger return and require less power to produce data of sufficient quality. Accordingly, power is typically set to the lowest level possible in order to receive a clear return with the best data. Survey vessels may be equipped with multiple acoustic systems; each system has different advantages that may be utilized depending on the specific survey area or purpose. In addition, many systems may be operated at one of two frequencies or at a range of frequencies. Primary source categories are described below, and characteristics of representative predominant sources are summarized in Table 2. Predominant sources are those that, when operated, would be louder than and/or have a larger acoustic footprint than other concurrently operated sources, at relevant frequencies. (1) Single and Multi-Frequency Narrow Beam Scientific Echosounders— Echosounders and sonars work by transmitting acoustic pulses into the water that travel through the water column, reflect off the seafloor, and return to the receiver. Water depth is measured by multiplying the time elapsed by the speed of sound in water (assuming accurate sound speed measurement for the entire signal path), while the returning signal itself carries information allowing ‘‘visualization’’ of the seafloor. Multi-frequency split-beam echosounders are deployed from PIFSC survey vessels to acoustically map the PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 distributions and estimate the abundances and biomasses of many types of fish; characterize their biotic and abiotic environments; investigate ecological linkages; and gather information about their schooling behavior, migration patterns, and avoidance reactions to the survey vessel. The use of multiple frequencies allows coverage of a broad range of marine acoustic survey activity, ranging from studies of small plankton to large fish schools in a variety of environments from shallow coastal waters to deep ocean basins. Simultaneous use of several discrete echosounder frequencies facilitates accurate estimates of the size of individual fish, and can also be used for species identification based on differences in frequencydependent acoustic backscattering among species. (2) Multibeam Echosounder and Sonar—Multibeam echosounders and sonars operate similarly to the devices described above. However, the use of multiple acoustic ‘‘beams’’ allows coverage of a greater area compared to single beam sonar. The sensor arrays for multibeam echosounders and sonars are usually mounted on the keel of the vessel and have the ability to look horizontally in the water column as well as straight down. Multibeam echosounders and sonars are used for mapping seafloor bathymetry, estimating fish biomass, characterizing fish schools, and studying fish behavior. (3) Acoustic Doppler Current Profiler (ADCP)—An ADCP is a type of sonar used for measuring water current velocities simultaneously at a range of depths. Whereas current depth profile measurements in the past required the use of long strings of current meters, the ADCP enables measurements of current velocities across an entire water column. The ADCP measures water currents with sound, using the Doppler effect. A sound wave has a higher frequency when it moves towards the sensor (blue shift) than when it moves away (red shift). The ADCP works by transmitting ‘‘pings’’ of sound at a constant frequency into the water. As the sound waves travel, they ricochet off particles suspended in the moving water, and reflect back to the instrument. Due to the Doppler effect, sound waves bounced back from a particle moving away from the profiler have a slightly lowered frequency when they return. Particles moving toward the instrument send back higher frequency waves. The difference in frequency between the waves the profiler sends out and the waves it receives is called the Doppler shift. The instrument uses this shift to calculate how fast the E:\FR\FM\22MRP2.SGM 22MRP2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules particle and the water around it are moving. Moreover, sound waves that hit particles far from the profiler take longer to come back than waves that strike close by. By measuring the time it takes for the waves to return to the sensor, and the Doppler shift, the profiler can measure current speed at many different depths with each series of pings. An ADCP anchored to the seafloor can measure current speed not just at the bottom, but at equal intervals to the surface. An ADCP instrument may be anchored to the seafloor or can be mounted to a mooring or to the bottom of a boat. ADCPs that are moored need an anchor to keep them on the bottom, batteries, and a data logger. Vesselmounted instruments need a vessel with power, a shipboard computer to receive the data, and a GPS navigation system so the ship’s movements can be subtracted from the current velocity data. ADCPs operate at frequencies between 75 and 300 kHz. (4) Net Monitoring Systems—During trawling operations, a range of sensors may be used to assist with controlling 15311 and monitoring gear. Net sounders give information about the concentration of fish around the opening to the trawl, as well as the clearances around the opening and the bottom of the trawl; catch sensors give information about the rate at which the codend is filling; symmetry sensors give information about the optimal geometry of the trawls; and tension sensors give information about how much tension is in the warps and sweeps. TABLE 2—OPERATING CHARACTERISTICS OF REPRESENTATIVE PREDOMINANT PIFSC ACTIVE ACOUSTIC SOURCES Operating frequencies Maximum source level Simrad EK60 narrow beam echosounder ........... 224 dB ......... 1 ms at 1 Hz Downward looking ................. 7° Simrad EM300 multibeam echosounder ............. 38, 70, 120, 200 kHz. 30 kHz ......... 237 dB ........ Downward looking ................. 1° ADCP Ocean Surveyor ........................................ Netmind ................................................................ 75 kHz ......... 30, 200 kHz 223.6 dB ...... 190 dB ........ 0.7–15 ms at 5 Hz. 1 ms at 4 Hz up to 0.3 ms at 7–9 Hz. Downward looking (30° tilt) ... Trawl-mounted ...................... 4° 50° Nearshore and Land-based Surveys— The Pacific Reef Assessment and Monitoring Program (RAMP) and Marine Debris Research and Removal Surveys involve circumnavigating islands and atolls using small vessels that may approach the shoreline. Additionally, the Marine Debris Research and Removal Surveys may involve land vehicle (trucks) operations in areas of marine debris where vehicle access is possible from highways or rural/dirt roads adjacent to coastal resources. The RAMP and Marine Debris Research and Removal Surveys have the potential to disturb pinnipeds hauled out during research activities either from approaches of nearshore small vessel based research or land based debris research and clean-up activities. Description of Marine Mammals in the Area of the Specified Activity jbell on DSKJLSW7X2PROD with PROPOSALS2 Single ping duration (ms) and repetition rate (Hz) Active acoustic system We have reviewed PIFSC’s species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of PIFSC’s application, instead of reprinting the information here (note that PIFSC provides additional information regarding marine mammal observations around the Main Hawaiian Islands in Table 3.3 of their application, including VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 information about group size and seasonality). Additional information regarding population trends and threats may be found in NMFS’s Stock Assessment Reports (SAR; www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website (www.fisheries.noaa.gov/findspecies). Table 3 lists all species with expected potential for occurrence in the specified geographical regions where PIFSC proposes to conduct the specified activity and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow the Society for Marine Mammalogy Committee on Taxonomy (2020). PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is discussed in greater detail later in this document (see ‘‘Negligible Impact Analysis’’). Stocks are not designated for most species in areas of the specified geographical regions outside of the Hawaiian EEZ. Therefore, while all species with expected potential for PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 Orientation/directionality Nominal beamwidth occurrence in the specified geographical regions are listed in Table 3, the listed stocks are in most cases specific to the Hawaiian EEZ. The only exceptions are NMFS-designated stocks for the humpback whale, rough-toothed dolphin, spinner dolphin, and false killer whale in American Samoa (animals belonging to these stocks would occur in the ASARA), and a false killer whale stock designated for Palmyra Atoll (animals belonging to this stock would occur in the WCPRA). With the exception of the humpback whale, which is discussed in greater detail following Table 3, and the aforementioned Palmyra Atoll stock of false killer whale, animals of any species occurring in the MARA or areas of the WCPRA outside of the Hawaiian EEZ and American Samoa EEZ would not be part of any NMFS-designated stock. Aside from the four species listed above, animals of any species occurring in the American Samoa EEZ would not be part of any NMFS-designated stock. As a reminder, the HARA, MARA, and ASARA are considered to include waters of the contiguous zone around these archipelagoes (i.e., 0–24 nmi from land), while the WCPRA is considered to include all remaining EEZ waters around those archipelagoes as well as the high seas and waters around U.S. possessions of the Pacific Remote Islands Area. Marine mammal abundance estimates presented in this document represent the total number of individuals that E:\FR\FM\22MRP2.SGM 22MRP2 15312 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules make up a given stock or the total number estimated within a particular study or survey area. Abundance estimates and related information, PBR values, and annual M/SI values given in Table 3 are specific to the stocks for which they are listed. This information is generally not available for these species occurring in areas outside the ranges of NMFS-designated stocks. NMFS-designated stocks in the Hawai1i region include animals found both within the Hawaiian Islands EEZ and in adjacent high seas waters; however, because data on abundance, distribution, and human-caused impacts are largely lacking for high seas waters, the status of these stocks are generally evaluated based on data from the U.S. EEZ waters of the Hawaiian Islands (including the Main Hawaiian Islands and Northwestern Hawaiian Islands). For certain species, existing data support the existence of demographically distinct resident populations associated with different regions within the Hawaiian Islands, and separate stocks are designated accordingly. NMFS-designated stocks for American Samoa include animals occurring within U.S. EEZ waters around American Samoa. All managed stocks in the specified geographical regions are assessed in either NMFS’s U.S. Pacific SARs or U.S. Alaska SARs. All values presented in Table 3 are the most recent available at the time of writing and are available online at: www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments. Twenty-six species (with 46 managed stocks; no stock is designated for Deraniyagala’s beaked whale) are considered to have the potential to cooccur with and potentially be taken by PIFSC activities. Species that could potentially occur in the research areas but are not expected to have the potential for interaction with PIFSC research gear or that are not likely to be harassed by PIFSC’s use of active acoustic devices are described briefly but omitted from further analysis. These include extralimital species, which are species that do not normally occur in a given area but for which there are one or more occurrence records that are considered beyond the normal range of the species. Extralimital species or stocks include the North Pacific right whale (Eubalaena japonica; all areas except ASARA), Omura’s whale (Balaenoptera omurai; all areas), Antarctic minke whale (B. bonaerensis; ASARA and WCPRA), southern bottlenose whale (Hyperoodon planifrons; ASARA and WCPRA), common dolphin (Delphinus delphis; all areas), northern elephant seal (Mirounga angustirostris; HARA and WCPRA), and northern fur seal (Callorhinus ursinus; HARA and WCPRA). TABLE 3—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF PIFSC RESEARCH ACTIVITIES Occurrence 2 Common name H A R A Stock 1 Scientific name I I A S A R A M A R A W C P R A I I I I I ESA/ MMPA status; strategic (Y/N) 3 Stock abundance (CV, Nmin, most recent abundance survey) 4 Annual M/SI 5 PBR Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Balaenopteridae (rorquals) Humpback whale * ......... Megaptera novaeangliae kuzira. X ...... X ...... X ...... X ...... -; N ......... E/D; Y .... ...... X ...... X ...... X ...... X E/D; Y .... -; N ......... Bryde’s whale ................ Balaenoptera acutorostrata scammoni. B. edeni brydei .............. American Samoa ........... Central North Pacific (CNP). Western North Pacific ... Hawaii ............................ Minke whale .................. Hawaii ............................ X X X X -; N ......... Sei whale ....................... Fin whale ....................... Blue whale ..................... B. borealis borealis ....... B. physalus physalus .... B. musculus musculus .. Hawaii ............................ Hawaii ............................ CNP ............................... X X X X X X ...... ...... ...... X X X E/D; Y .... E/D; Y .... E/D; Y .... unk (n/a; 150; 2008) ...... 10,103 (0.3; 7,891; 2006). 1,107 (0.3; 865; 2006) .. unk ................................. 0.4 83 0 25 3 undet 2.6 0 1,751 (0.29; 1,378; 2010). 391 (0.9; 204; 2010) ..... 154 (1.05; 75; 2010) ..... 133 (1.09; 63; 2010) ..... 13.8 0 0.4 0.1 0.1 0.2 0 0 13.9 0.7 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Physeteridae Sperm whale ................. Physeter macrocephalus Hawaii ............................ X X X X E/D; Y .... 4,559 (0.33; 3,478; 2010). ...... X X X -; N ......... -; N ......... unk ................................. unk ................................. undet undet 0 0 X X -; N ......... -; N ......... 4.3 46 0 0 Family Kogiidae Pygmy sperm whale ...... Dwarf sperm whale ....... Kogia breviceps ............. K. sima .......................... Hawaii ............................ Hawaii 6 ......................... X X X X jbell on DSKJLSW7X2PROD with PROPOSALS2 Family Ziphiidae (beaked whales) Cuvier’s beaked whale .. Longman’s beaked whale. Blainville’s beaked whale. Deraniyagala’s beaked whale. Ziphius cavirostris ......... Indopacetus pacificus .... Hawaii ............................ Hawaii ............................ X X X ...... X ...... Mesoplodon densirostris Hawaii ............................ X X ...... X -; N ......... 723 (0.69; 428; 2010) ... 7,619 (0.66; 4,592; 2010). 2,105 (1.13; 980; 2010) 10 0 M. hotaula ..................... n/a ................................. ...... ...... ...... X -; N ......... unk ................................. undet unk 72,528 (0.39; 52,833; 2010). unk ................................. 21,815 (0.57; 13,957; 2010). 184 (0.11; 97; 2015) ..... 423 2.1 undet 140 unk 0 Family Delphinidae Rough-toothed dolphin * Steno bredanensis ........ Common bottlenose dolphin *. Tursiops truncatus truncatus. VerDate Sep<11>2014 I 19:40 Mar 19, 2021 Hawaii ............................ X X X X -; N ......... American Samoa ........... Hawai1i Pelagic .............. ...... X ...... X ...... X ...... X -; N ......... -; N ......... I Kauai and Ni1ihau .......... Jkt 253001 PO 00000 Frm 00016 I I I I I ...... Fmt 4701 ...... ...... Sfmt 4702 ...... -; N ......... I E:\FR\FM\22MRP2.SGM 22MRP2 I 1.0 I unk 15313 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules TABLE 3—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF PIFSC RESEARCH ACTIVITIES—Continued Occurrence 2 Common name Pantropical spotted dolphin *. H A R A M A R A A S A R A W C P R A Oahu 6 ........................... 4-Island Region 6 ........... Hawai1i Island ................ Hawai1i Pelagic .............. ...... ...... ...... X ...... ...... ...... X ...... ...... ...... X ...... ...... ...... X -; -; -; -; N N N N ......... ......... ......... ......... ...... ...... ...... X ...... ...... ...... ...... ...... ...... X ...... ...... ...... X ...... ...... ...... ...... ...... ...... X ...... ...... ...... X ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... X ...... ...... ...... ...... ...... ...... X -; -; -; -; -; -; -; -; -; -; -; N N N N N N N N N N N ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... Scientific name Stenella attenuata attenuata. ESA/ MMPA status; strategic (Y/N) 3 Stock 1 Stock abundance (CV, Nmin, most recent abundance survey) 4 743 (0.54; 388; 2006) ... 191 (0.24; unk; 2006) .... 128 (0.13; 91; 2013) ..... 55,795 (0.4; 40,338; 2010). unk ................................. unk ................................. unk ................................. unk ................................. 601 (0.2; unk; 2005) ...... 355 (0.09; unk; 2007) .... 665 (0.09; 617; 2012) ... 260 (n/a; 139; 1998) ..... unk ................................. unk ................................. 61,021 (0.38; 44,922; 2010). 51,491 (0.66; 31,034; 2010). 11,613 (0.43; 8,210; 2010). 8,666 (1.0; 4,299; 2010) 447 (0.12; 404; 2009) ... 10,640 (0.53; 6,998; 2010). 617 (1.11; 290; 2010) ... Spinner dolphin * ........... S. longirostris longirostris. Striped dolphin .............. S. coeruleoalba ............. Oahu .............................. 4-Island Region ............. Hawai1i Island ................ Hawai1i Pelagic .............. Kauai and Ni1ihau .......... Oahu/4-Island Region ... Hawai1i Island ................ Kure and Midway Atoll 6 Pearl and Hermes Reef American Samoa ........... Hawai1i Pelagic .............. Fraser’s dolphin ............. Lagenodelphis hosei ..... Hawaii ............................ X X ...... X -; N ......... Risso’s dolphin .............. Grampus griseus ........... Hawaii ............................ X X ...... X -; N ......... Melon-headed whale * ... Peponocephala electra Pygmy killer whale ........ Feresa attenuata ........... Hawaii ............................ Kohala Resident ............ Hawaii ............................ X ...... X X ...... X ...... ...... ...... X ...... X -; N ......... -; N ......... -; N ......... False killer whale * ........ Pseudorca crassidens ... Northwestern Hawaiian Islands. Hawai1i Pelagic .............. Hawai1i Insular ............... American Samoa ........... Palmyra Atoll ................. Hawaii ............................ Hawaii ............................ X X X X -; N ......... ...... ...... ...... ...... X X ...... ...... ...... ...... X X ...... ...... ...... ...... X X ...... ...... ...... ...... X X -; N ......... E/D; Y .... -; N ......... -; N ......... -; N ......... -; N ......... 1,540 (0.66; 928; 2010) 167 (0.14; 149; 2015) ... unk ................................. 1,329 (0.65; 806; 2005) 146 (0.96; 74; 2010) ..... 19,503 (0.49; 13,197; 2010). E/D; Y .... 1,351 (0.03; 1,325; 2017). Killer whale .................... Short-finned pilot whale Orcinus orca .................. Globicephala macrorhynchus. PBR Annual M/SI 5 undet undet 0.9 403 unk unk unk 0 undet undet undet undet undet undet 6.2 undet undet undet 449 unk unk ≥ 0.2 0 unk unk unk unk unk unk 0 310 0 82 0 43 4 56 0 0 1.1 2.3 0.4 9.3 0.3 undet 6.4 0.7 106 7.6 0 unk 0.3 0 0.9 4.6 ≥1.6 Order Carnivora—Superfamily Pinnipedia Family Phocidae (earless seals) Hawaiian monk seal * .... Neomonachus schauinslandi. Hawaii ............................ X ...... ...... X jbell on DSKJLSW7X2PROD with PROPOSALS2 * Species marked with an asterisk are addressed in further detail in text below. Additional detail for all species may be found in Sections 3 and 4 of PIFSC’s application. 1 All species with potential for take by PIFSC are presented in Table 1. All known stocks are presented here but marine mammals in the MARA, ASARA, and WCPRA are generally not assigned to designated stocks. 2 HARA: Hawaiian Archipelago Research Area; MARA: Mariana Archipelago Research Area; ASARA: American Samoa Archipelago Research Area; WCPRA: Western and Central Pacific Research Area. 3 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 4 CV is coefficient of variation; N min is the minimum estimate of stock abundance. 5 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. 6 Abundance estimates for these stocks are not considered current. PBR is therefore considered undetermined for these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available information for use in this document. Humpback Whale—Prior to 2016, humpback whales were listed under the ESA as an endangered species worldwide. Following a 2015 global status review (Bettridge et al., 2015), NMFS established 14 distinct population segments (DPS) with different listing statuses (81 FR 62259; September 8, 2016) pursuant to the ESA. The DPSs that occur in U.S. waters do not necessarily equate to the existing stocks designated under the MMPA and shown in Table 2. Because MMPA stocks cannot be portioned, i.e., parts managed as ESA-listed while other parts VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 managed as not ESA-listed, until such time as the MMPA stock delineations are reviewed in light of the DPS designations, NMFS considers the existing humpback whale stocks under the MMPA to be endangered and depleted for MMPA management purposes (e.g., selection of a recovery factor, stock status). Within western and central Pacific waters, three DPSs may occur: The Western North Pacific (WNP) DPS (endangered), Hawai1i DPS (not listed), and Oceania DPS (not listed). Whales encountered in the HARA would be PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 from the Hawai1i DPS; whales encountered in the MARA from the WNP DPS; and whales encountered in the ASARA from the Oceania DPS. While not possible to know in advance the identity of whales encountered in the WCPRA, in reality the DPS identity would likely be determined based on proximity to either the HARA, MARA, or ASARA. PIFSC has requested authorization of humpback whale take by M/SI only for the CNP stock (i.e., Hawai1i DPS) and has not requested take of humpback whales (from any stock) by E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15314 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules Level B harassment; see ‘‘Estimated Take’’ section. With regard to abundance, an updated analysis of data from the Structure of Populations, Levels of Abundance and Status of Humpback Whales in the North Pacific (SPLASH) study provided an estimate of 21,808 (CV = 0.04) humpback whales in the North Pacific Ocean (Barlow et al., 2011). Bettridge et al. (2015) stated that this estimate may still be an underestimate of actual humpback whale abundance due to biases that could not be corrected for using the available data. Calambokidis et al. (2008) approximated the size of the whale populations frequenting each breeding area at 10,000 individuals in Hawai1i and 1,000 for the WNP areas. Although Barlow et al. (2011) did not apportion their estimate to individual breeding areas, Bettridge et al. (2015) state that the proportions are likely to be similar to those estimated by Calambokidis et al. (2008) and therefore about 20 percent larger than the Calambokidis et al. (2008) estimates, i.e., 12,000 individuals in the Hawai1i DPS and 1,200 individuals in the WNP DPS. The size of the Oceania DPS has been estimated at 3,827 (CV = 0.12) whales for a portion of the DPS breeding range covering New Caledonia, Tonga, French Polynesia, and the Cook Islands (SPWRC, 2006). In winter, most humpback whales occur in the subtropical and tropical waters of the Northern and Southern Hemispheres, then migrate to higher latitudes in the summer to feed (Muto et al., 2018). Peak abundance in Hawaiian waters occurs from lateFebruary to early-April (Mobley et al., 2001). The Hawaiian Islands Humpback Whale National Marine Sanctuary (HIHWNMS) was established in 1992 by the U.S. Congress to protect humpback whales and their habitat in Hawai1i (NOAA 2018a). The sanctuary provides essential breeding, calving, and nursing areas necessary for the long-term recovery of the North Pacific humpback whale population. The HIHWNMS provides protection to humpbacks in the shallow waters (from the shoreline to a depth of 100 fathoms or 183 m) around the four islands area of Maui, Penguin Bank; off the north shore of Kauai, the north and south shores of Oahu, and the north Kona and Kohala coast of the island of Hawai1i (NOAA 2018a). These areas, as well as some of the waters surrounding them, are also considered biologically important areas (BIAs) for reproduction (Table 3; Baird et al,. 2015). Please see Caretta et al. (2019) for additional information on the Central North Pacific and Western North Pacific VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 stocks, and Caretta et al. (2009) for additional information on the American Samoa stock. Rough-toothed Dolphin—Roughtoothed dolphins are found throughout the world in tropical and warmtemperate waters. They are present around all the MHI and have been observed close to the islands and atolls at least as far northwest as Pearl and Hermes Reef in the NWHI. Although analysis of genetic samples indicates that designation of a separate Hawai1i Island stock may be warranted, only a single Hawai1i stock has been designated. Waters off the west side of Hawai1i Island have been identified as a BIA for the small and resident population of rough-toothed dolphins (Table 4; Baird et al., 2015). Roughtoothed dolphins are common in the South Pacific from the Solomon Islands to French Polynesia and the Marquesas, and have been among the most commonly observed cetaceans during summer and winter surveys conducted from 2003–06 around the American Samoan island of Tutuila (though they were not observed during 2006 surveys of Swain’s Island and the Manua Group). In addition, a rough-toothed dolphin was caught incidentally in the American Samoa-based longline fishery in 2008, indicating that some dolphins maintain a more pelagic distribution. Rough-toothed dolphins are thought to be common throughout the Samoan archipelago. No abundance estimates are available for rough-toothed dolphins in American Samoa, though investigation of published density estimates for rough-toothed dolphins in other tropical Pacific regions yields a plausible abundance estimate range of 692–3,115 rough-toothed dolphins in the American Samoa EEZ. Therefore, a plausible range of PBR values would be 3.4–22 dolphins (assuming a default growth rate and recovery factor of 0.4) (Carretta et al., 2015). Please see Carretta et al. (2015, 2018) for more information about these stocks. Bottlenose Dolphin—Bottlenose dolphins are widely distributed throughout the world in tropical and warm-temperate waters. The species is primarily coastal in much of its range, but there are populations in some offshore deepwater areas as well. Bottlenose dolphins are common throughout the Hawaiian Islands, from the island of Hawai1i to Kure Atoll, and are found in shallow inshore waters and deep water. Baird et al. (2015) identified three BIAs in the Hawaiian Archipelago for small and resident populations of bottlenose dolphins (Table 3). Photoidentification and genetic studies in the MHI suggest limited movement of PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 bottlenose dolphins between islands and offshore waters and the existence of demographically distinct resident populations at each of the four MHI island groups (as reflected in the current stock designations). Genetic data support inclusion of bottlenose dolphins in deeper waters surrounding the MHI as part of the broadly distributed pelagic population which, in Hawaiian waters, is managed as a pelagic stock. The boundary between the pelagic stock and insular stocks is placed at the 1,000-m isobath (the boundary between the Oahu and 4Islands stocks is designated as equidistant between the 500 m isobaths around Oahu and the 4-Islands Region, through the middle of Kaiwi Channel). Although it is likely that additional demographically independent populations of bottlenose dolphins exist in the NWHI, those animals are considered part of the pelagic stock until additional data become available upon which to base stock designations. Photo-identification studies conducted from 2012–15 identified a minimum of 97 distinct individuals in the KauaiNi1ihau stock (Table 2), though earlier photo-identification studies conducted from 2003–05 (and now considered outdated) resulted in an abundance estimate of 147 (CV = 0.11), or 184 animals when corrected for the proportion of marked individuals (Baird et al., 2009). Similarly for the Hawai1i Island stock, photo-identification studies conducted from 2000–06 (and now considered outdated) resulted in an abundance estimate of 102 (CV = 0.13), or 128 animals when corrected for the proportion of marked individuals (Baird et al., 2009), whereas later studies conducted from 2010–13 identified a minimum of 91 distinct individuals (Table 2). For both of these stocks, a current PBR value is calculated using the more recent minimum abundance estimates. Available abundance information for other bottlenose dolphin stocks is shown in Table 3. Please see Carretta et al. (2018) for additional information about these stocks of bottlenose dolphin. Pantropical Spotted Dolphin— Pantropical spotted dolphins are primarily found in tropical and subtropical waters worldwide, and have been observed in all months of the year around the MHI, in areas ranging from shallow nearshore water to depths of 5,000 m, although sighting rates peak in depths from 1,500 to 3,500 m. As with bottlenose dolphins, genetic analyses suggest the existence of islandassociated stocks. However, although commonly observed off of three of the E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules MHI island groups, they are largely absent from waters around Kauai and Ni1ihau, and only three insular stocks are designated. The Oahu and 4-Islands stocks are considered to include animals within 20 km of those island groups, whereas the Hawai1i Island stock includes animals within 65 km of Hawai1i Island. The pelagic stock includes animals occurring in Hawaiian EEZ and adjacent high seas waters outside these insular stock areas. No abundance information is available for the insular stocks. Baird et al. (2015) identified two BIAs for small and resident populations of pantropical spotted dolphins in the Hawaiian Archipelago (Table 3). Please see Carretta et al. (2018) for additional information about these stocks. Spinner Dolphin—Spinner dolphins occur in all tropical and most subtropical waters between 30–40° N and 20–40° S latitude, generally in areas with a shallow mixed layer, shallow and steep thermocline, and little variation in surface temperature (Perrin 2009a). Within the central and western Pacific, spinner dolphins are island-associated and use shallow protected bays to rest and socialize during the day then move offshore at night to feed. They are common in nearshore waters throughout the Hawaiian archipelago (Carretta et al., 2012). There are seven stocks found within the PIFSC fisheries and ecosystem research areas: (1) Hawai‘i Island, (2) Oahu/4-Islands, (3) Kauai/ Ni‘ihau, (4) Pearl & Hermes Reef, (5) Kure/Midway, (6) Hawai‘i pelagic, including animals found both within the Hawaiian Islands EEZ (outside of island-associated boundaries) and in adjacent international waters, and (7) the American Samoa stock, which includes animals inhabiting the U.S. EEZ waters around American Samoa. Baird et al. identified five BIAs for small and resident populations of spinner dolphins within the Hawaiian Archipelago (Table 3). Please see Caretta et al. (2019) for additional information about the Hawaiian Island Stocks Complex (including the Hawai1i Island, Oahu/4-islands, Kauai/Ni1ihau, Pearl & Hermes Reef, Midway Atoll/Kure, Hawai1i Pelagic stocks) and Caretta et al. (2011) for additional information on the American Samoa stock. Melon-headed Whale—Melon-headed whales are distributed worldwide in tropical and warm-temperate waters. The distribution of reported sightings suggests that the oceanic habitat of this species is in primarily equatorial waters (Perryman et al., 1994). They generally occur offshore in deep oceanic waters. Nearshore distribution is generally associated with deep water areas near to VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 the coast (Perryman 2009). Photoidentification and telemetry studies suggest there are two demographicallyindependent populations of melonheaded whales in Hawaiian waters, the Hawaiian Islands stock and the Kohala resident stock (Carretta et al., 2015). The Hawaiian Islands stock includes melonheaded whales inhabiting waters throughout the U.S. EEZ of the Hawaiian Islands, including the area of the Kohala resident stock, and adjacent high seas waters, and (2) the Kohala resident stock, which includes melonheaded whales off the Kohala Peninsula and west coast of Hawai‘i Island and in less than 2500m of water. At this time, assignment of individual melon-headed whales within the overlap area to either stock requires photographicidentification of the animal. Resighting data and social network analyses of photographed individuals indicate very low rates of interchange between the Hawaiian Islands and Kohala resident stocks (Aschettino et al., 2012). This finding is supported by preliminary genetic analyses that suggest a restricted gene flow between the Kohala residents and other melon-headed whales sampled in Hawaiian waters (Oleson et al., 2013). Baird et al. (2015) identified a BIA for the small and resident Kohola stock of melon-headed whales off the northwestern tip of Hawai1i Island (Table 3). Please see Caretta et al. (2018) for additional information about these stocks. False Killer Whale—False killer whales occur throughout tropical and warm temperate waters worldwide. They are largely pelagic, but also occur nearshore and in shallow waters around oceanic islands (Baird 2009b). Five stocks are recognized in the U.S. EEZ of the Pacific Ocean: (1) The Main Hawaiian Islands insular stock, which includes animals found within 72 km (38.9 nm) of the MHIs; (2) the NWHI stock, which includes animals inhabiting waters within the NWHI and a 50 nmi radius around Kauai; (3) the Hawai‘i pelagic stock, which includes animals found inhabiting waters greater than 11 km (5.9 nmi) from the MHI, including adjacent high seas waters; (4) the Palmyra Atoll stock, which includes animals found within the U.S. EEZ of Palmyra Atoll; and (5) the American Samoa stock, which includes animals found within the U.S. EEZ of American Samoa. On August 23, 2018, NMFS designated waters from the 45-m depth contour to the 3,200-m depth contour around the main Hawaiian Islands from Ni1ihau east to Hawai1i as critical habitat for the Main Hawaiian Islands insular DPS of false killer whales (83 FR 35062; PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 15315 July 24, 2018). Additionally, Baird et al. (2015) identified waters throughout the MHI as a BIA for the small and resident Main Hawaiian Islands insular stock of false killer whales (Table 3). As described in detail below, a take reduction plan was finalized in 2012 to address high rates of false killer whale mortality and serious injury in Hawai1ibased longline fisheries. Please see Caretta et al. (2018) for additional information on the Hawaiian Islands Stock Complex (including the MHI Insular stock, NWHI stock, and Hawai1i pelagic stock), and Caretta et al. (2011) and (2012) for additional information on the American Samoa and Palmyra Atoll stocks, respectively. Hawaiian monk seal—The majority of the Hawaiian monk seal population can be found around the NWHI, but a small and growing population lives around the MHIs. As summarized in Carretta et al. (2014, 2012, and citations herein), Hawaiian monk seals are distributed predominantly in six NWHI subpopulations at French Frigate Shoals, Laysan and Lisianski Islands, Pearl and Hermes Reef, and Midway and Kure Atoll. They also occur at Necker and Nihoa Islands, which are the southernmost islands in the NWHI. Genetic variation among NWHI monk seals is extremely low and may reflect both a long-term history at low population levels and more recent human influences (Schultz et al. 2008). On average, 10–15 percent of the seals migrate among the NWHI subpopulations. Thus, the NWHI subpopulations are not isolated, though the different island subpopulations have exhibited considerable demographic independence. Observed interchange of individuals among the NWHI and MHI regions is uncommon, and genetic stock structure analysis supports management of the species as a single stock. Please see Caretta et al. (2019) for additional information on this species. Take Reduction Planning—Take reduction plans are designed to help recover and prevent the depletion of strategic marine mammal stocks that interact with certain U.S. commercial fisheries, as required by Section 118 of the MMPA. The immediate goal of a take reduction plan is to reduce, within six months of its implementation, the M/SI of marine mammals incidental to commercial fishing to less than the PBR level. The long-term goal is to reduce, within five years of its implementation, the M/SI of marine mammals incidental to commercial fishing to insignificant levels, approaching a zero serious injury and mortality rate, taking into account the economics of the fishery, the availability of existing technology, and E:\FR\FM\22MRP2.SGM 22MRP2 15316 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules existing state or regional fishery management plans. Take reduction teams are convened to develop these plans. For marine mammals off Hawaii, there is currently one take reduction plan in effect (False Killer Whale Take Reduction Plan). The goal of this plan is to reduce M/SI of false killer whales in Hawaii-based deep-set and shallowset longline fisheries; the plan addresses only the Hawai1i Insular and Hawai1i Pelagic stocks of false killer whale. A team was convened in 2010 and a final plan produced in 2012 (77 FR 71260; November 29, 2012). The most recent five-year averages of M/SI for these stocks are below PBR. More information is available online at: www.fisheries.noaa.gov/national/ marine-mammal-protection/false-killerwhale-take-reduction. PIFSC has requested the authorization of incidental M/SI for false killer whale; however, this take is expected to potentially occur only for the Hawai1i Pelagic stock or for false killer whales belonging to unspecified stocks and occurring in high seas waters (see ‘‘Estimated Take’’ later in this document). PIFSC longline research would not occur within the ranges of other designated stocks of false killer whale. Regulatory measures required by the plan include gear requirements, longline prohibited areas, training and certification in marine mammal handling and release, captains’ supervision of marine mammal handling and release, and posting of NMFS-approved placards on longline vessels. On July 18, 2018, NMFS issued a temporary rule (83 FR 33848) to close one of the prohibited areas to deep-set longline fishing for the remainder of the calendar year, because a bycatch trigger established per the regulations implementing the plan was met. PIFSC does not conduct research with longline gear within any of the exclusion zones established by the plan, and PIFSC longline gear adheres to all relevant requirements placed on commercial gear. PIFSC is not conducting commercial fishing as described by the MMPA, but PIFSC is adhering to these commercial fishing restrictions nevertheless. There are no take reduction plans currently in effect for fisheries in American Samoa, the Marianas, or other locations considered herein. Unusual Mortality Events (UME)—A UME is defined under the MMPA as ‘‘a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response.’’ Based on records from 1991 to the present, there have not been any formally recognized UMEs in the Pacific Islands. However, some migratory whales may have been impacted by UMEs occurring in Alaska. For more information on UMEs, please visit: www.fisheries.noaa.gov/national/ marine-life-distress/marine-mammalunusual-mortality-events. Biologically Important Areas In 2015, NOAA’s Cetacean Density and Distribution Mapping Working Group identified Biologically Important Areas (BIAs) for 24 cetacean species, stocks, or populations in seven regions (US East Coast, Gulf of Mexico, West Coast, Hawaiian Islands, Gulf of Alaska, Aleutian Islands and Bering Sea, and Arctic) within U.S. waters through an expert elicitation process. BIAs are reproductive areas, feeding areas, migratory corridors, and areas in which small and resident populations are concentrated. BIAs are region-, species-, and time-specific. A description of the types of BIAs found within PIFSC fishery research areas follows: Reproductive Areas: Areas and months within which a particular species or population selectively mates, gives birth, or is found with neonates or other sensitive age classes. Feeding Areas: Areas and months within which a particular species or population selectively feeds. These may either be found consistently in space and time, or may be associated with ephemeral features that are less predictable but can be delineated and are generally located within a larger identifiable area. Migratory Corridors: Areas and months within which a substantial portion of a species or population is known to migrate; the corridor is typically delimited on one or both sides by land or ice. Small and Resident Population: Areas and months within which small and resident populations occupying a limited geographic extent exist. The delineation of BIAs does not have direct or immediate regulatory consequences. Rather, the BIA assessment is intended to provide the best available science to help inform analyses and planning for applicants, and to support regulatory and management decisions under existing authorities, and to support the reduction of anthropogenic impacts on cetaceans and to achieve conservation and protection goals. In addition, the BIAs and associated information may be used to identify information gaps and prioritize future research and modeling efforts to better understand cetaceans, their habitat, and ecosystems. Table 4 provides a list of BIAs found within PIFSC fisheries research areas (Baird et al., 2015). TABLE 4—BIOLOGICALLY IMPORTANT AREAS WITHIN PIFSC RESEARCH AREAS BIA name Species BIA type Time of year Size (km2) jbell on DSKJLSW7X2PROD with PROPOSALS2 HAWAIIAN ARCHIPELAGO RESEARCH AREA (HARA) Kure Atoll and Midway Atoll ................... Pearl and Hermes Reef ......................... Kauai and Ni1ihau ................................... Ni1ihau and Kauai ................................... Kauai, Ni1ihau, Maui, Hawai1i Islands ..... Oahu and 4-Islands Area ....................... Oahu ....................................................... Oahu ....................................................... Hawai1i Island to Ni1ihau Island .............. 4-Islands Area ........................................ Maui and Lanai ....................................... Hawai1i Island ......................................... Hawai1i Island ......................................... Hawai1i Island ......................................... Hawai1i Island ......................................... Hawai1i Island ......................................... VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 Spinner dolphin ...................................... Spinner dolphin ...................................... Spinner dolphin ...................................... Bottlenose dolphin ................................. Humpback whale ................................... Spinner dolphin ...................................... Bottlenose dolphin ................................. Pantropical spotted dolphin ................... False killer whale ................................... Bottlenose dolphin ................................. Pantropical spotted dolphin ................... Cuvier’s beaked whale ........................... Blainville’s beaked whale ....................... Bottlenose dolphin ................................. Melon-headed whale .............................. Short-finned pilot whale ......................... PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 Small and resident Small and resident Small and resident Small and resident Reproduction ......... Small and resident Small and resident Small and resident Small and resident Small and resident Small and resident Small and resident Small and resident Small and resident Small and resident Small and resident E:\FR\FM\22MRP2.SGM Year-round ............. Year-round ............. Year-round ............. Year-round ............. February-March ..... Year-round ............. Year-round ............. Year-round ............. Year-round ............. Year-round ............. Year-round ............. Year-round ............. Year-round ............. Year-round ............. Year-round ............. Year-round ............. 22MRP2 4,630 2,099 7,226 2,764 5,846 14,616 3,802 1,048 5,430 10,622 699 23,583 7,442 4,732 1,753 2,968 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules 15317 TABLE 4—BIOLOGICALLY IMPORTANT AREAS WITHIN PIFSC RESEARCH AREAS—Continued BIA name Hawai1i Hawai1i Hawai1i Hawai1i Hawai1i Island Island Island Island Island Species ......................................... ......................................... ......................................... ......................................... ......................................... BIA type Rough-toothed dolphin ........................... Spinner dolphin ...................................... Pantropical spotted dolphin ................... Pygmy killer whale ................................. Dwarf sperm whale ................................ Small Small Small Small Small and and and and and To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these Marine Mammal Hearing Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). Time of year resident resident resident resident resident Year-round Year-round Year-round Year-round Year-round ............. ............. ............. ............. ............. Size (km2) 7,175 9,469 5,505 2,265 2,675 marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with an exception for lower limits for lowfrequency cetaceans where the result was deemed to be biologically implausible and the lower bound of the low-frequency cetacean hearing range from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in Table 5. TABLE 5—MARINE MAMMAL HEARING GROUPS (NMFS, 2018) Hearing group Generalized hearing range * Low-frequency (LF) cetaceans (baleen whales) ................................................................................................ Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ..................... High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. australis). Phocid pinnipeds (PW) (underwater) (true seals) ............................................................................................. Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ......................................................................... 7 Hz to 35 kHz. 150 Hz to 160 kHz. 275 Hz to 160 kHz. 50 Hz to 86 kHz. 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Twenty-six marine mammal species (25 cetacean species and one phocid pinniped) have the potential to co-occur with PIFSC research activities—please refer to Table 3. Of the 25 cetacean species that may be present, six are classified as lowfrequency cetaceans, 17 are classified as mid-frequency cetaceans, and two are classified as high-frequency cetaceans. jbell on DSKJLSW7X2PROD with PROPOSALS2 Potential Effects of the Specified Activity on Marine Mammals and Their Habitat This section includes a summary and discussion of the ways that components of the specified activity (e.g., gear deployment, use of active acoustic sources, visual disturbance) may impact marine mammals and their habitat. The ‘‘Estimated Take’’ section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The ‘‘Negligible Impact VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 Analysis and Determination’’ section considers the content of this section and the material it references, the ‘‘Estimated Take’’ section, and the ‘‘Proposed Mitigation’’ section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. In the following discussion, we consider potential effects to marine mammals from ship strike, physical interaction with the gear types described previously, use of active acoustic sources, and visual disturbance of pinnipeds. Ship Strike Vessel collisions with marine mammals, or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface may be struck directly by a vessel, a surfacing animal may hit the PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 bottom of a vessel, or an animal just below the surface may be cut by a vessel’s propeller. Animals may survive superficial strikes. These interactions are typically associated with large whales, which on occasion, are fatally struck by large commercial ships. Although smaller cetaceans or pinnipeds are more maneuverable in relation to large vessels than are large whales, they may also be susceptible to ship strike. The severity of injuries typically depends on the size and speed of the vessel, with the probability of death or serious injury increasing as vessel speed increases (Knowlton and Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007; Conn and Silber, 2013). Impact forces increase with speed, as does the probability of a strike at a given distance due to reduced detection and reaction time (Silber et al., 2010; Gende et al., 2011). Pace and Silber (2005) found that the probability of death or serious injury by ship strike increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15318 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules injury or death increased from 45 to 75 percent as vessel speed increased from 10 to 14 kt, and exceeded 90 percent at 17 kt. Higher speeds during collisions result in greater force of impact, but higher speeds also appear to increase the chance of severe injuries or death through increased likelihood of collision by pulling whales toward the vessel (Clyne, 1999; Knowlton et al., 1995). In a separate study, Vanderlaan and Taggart (2007) analyzed the probability of lethal mortality of large whales at a given speed, showing that the greatest rate of change in the probability of a lethal injury to a large whale as a function of vessel speed occurs between 8.6 and 15 kt. The chances of a lethal injury decline from approximately 80 percent at 15 kt to approximately 20 percent at 8.6 kt. At speeds below 11.8 kt, the chances of lethal injury drop below fifty percent, while the probability asymptotically increases toward one hundred percent above 15 kt. In an effort to reduce the number and severity of strikes of the endangered North Atlantic right whale (Eubalaena glacialis), NMFS implemented speed restrictions in 2008 (73 FR 60173; October 10, 2008). These restrictions require that vessels greater than or equal to 65 ft (19.8 m) in length travel at less than or equal to 10 kt near key port entrances and in certain areas of right whale aggregation along the U.S. eastern seaboard. Conn and Silber (2013) estimated that these restrictions reduced total ship strike mortality risk levels by 80 to 90 percent. For vessels used in PIFSC research activities, transit speeds average 10 kt (but vary from 6–14 kt), while vessel speed during active sampling with towed gear is typically only 2–4 kt. At sampling speeds, both the possibility of striking a marine mammal and the possibility of a strike resulting in serious injury or mortality are discountable. Ship strikes, as analyzed in the studies cited above, generally involve commercial shipping, which is much more common in both space and time than is research activity. Jensen and Silber (2004) summarized ship strikes of large whales worldwide from 1975–2003 and found that most collisions occurred in the open ocean and involved large vessels (e.g., commercial shipping). Commercial fishing vessels, which are similar in size to some of the ships used by PIFSC, were responsible for three percent of recorded collisions, while only one such incident (0.75 percent of recorded ship strikes) was reported for a research vessel during that time period. VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 It is possible for ship strikes to occur while traveling at slow speeds. For example, a hydrographic survey vessel traveling at low speed (5.5 kt) while conducting mapping surveys off the central California coast struck and killed a blue whale in 2009. The State of California determined that the whale had suddenly and unexpectedly surfaced beneath the hull, with the result that the propeller severed the whale’s vertebrae, and that this was an unavoidable event. The strike represents the only such incident in approximately 540,000 hours of similar coastal mapping activity (p = 1.9 × 10¥6; 95% CI = 0¥5.5 × 10¥6; NMFS, 2013). In addition, a research vessel reported a fatal strike in 2011 of a dolphin in the Atlantic, demonstrating that it is possible for strikes involving smaller cetaceans or pinnipeds to occur. In that case, the incident report indicated that an animal apparently was struck by the vessel’s propeller as it was intentionally swimming near the vessel. While indicative of the type of unusual events that cannot be ruled out, neither of these instances represents a circumstance that would be considered reasonably foreseeable or that would be considered preventable. Although the likelihood of vessels associated with research surveys striking a marine mammal are low, this rule requires a robust ship strike avoidance protocol (see ‘‘Proposed Mitigation’’), which we believe eliminates any foreseeable risk of ship strike. We anticipate that vessel collisions involving PIFSC research vessels, while not impossible, represent unlikely, unpredictable events. Furthermore, PIFSC has never reported a ship strike associated with fisheries research activities conducted or funded by the PIFSC. Given the proposed mitigation measures such as the presence of bridge crew watching for obstacles at all times (including marine mammals), the presence of marine mammal observers on some surveys, (see ‘‘Proposed Mitigation’’) as well as the small number of research cruises relative to commercial ship traffic, we believe that the possibility of ship strike is discountable. Moreover, given the relatively slow speeds at which PIFSC research vessels travel during sampling activities and during transit, even if a marine mammal is struck, it would not likely result in serious injury or mortality (Knowlton and Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007; Conn and Silber, 2013). No incidental take resulting from ship strike is anticipated. PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 Research Gear The types of research gear used by PIFSC were described previously under ‘‘Detailed Description of Activity.’’ Here, we broadly categorize the gear as either (1) extremely unlikely to result in marine mammal interactions, or (2) gear that may result in marine mammal interactions. Former category is not considered further, while those in the latter category is discussed below. Marine mammal interaction is most likely for trawls and longlines. Trawl nets and longlines deployed by PIFSC are similar to gear used in various commercial fisheries. There are documented occurrences of and potential for marine mammal interaction with these gear types via physical contact such as capture or entanglement. Read et al. (2006) estimated marine mammal bycatch in U.S. fisheries from 1990–99 and derived an estimate of global marine mammal bycatch by expanding U.S. bycatch estimates using data on fleet composition from the United Nations Food and Agriculture Organization (FAO). Although most U.S. bycatch for both cetaceans (84 percent) and pinnipeds (98 percent) occurred in gillnets (a type of gear not used by PIFSC), global marine mammal bycatch in trawls and longlines is likely substantial given that total global bycatch may be hundreds of thousands of individuals per year (Read et al., 2006). In addition, global bycatch via longline has likely increased, as longlines are currently the most common method of capturing swordfish and tuna since the U.N. banned the use of high seas driftnets over 2.5 km long in 1991 (high seas driftnets were previously often 40–60 km long) (Read, 2008; FAO, 2001). Marine mammals are intelligent and inquisitive—when their pursuit of prey coincides with human pursuit of the same resources, physical interaction with fishing gear may occur (e.g., Beverton, 1985). Fishermen and marine mammals are both drawn to areas of high prey density, and certain fishing activities may further attract marine mammals by providing food (e.g., bait, captured fish, bycatch discards) or by otherwise making it easier for animals to feed on a concentrated food source. Similarly, near-surface foraging opportunities may present an advantage for marine mammals by negating the need for energetically expensive deep foraging dives (Hamer and Goldsworthy, 2006). Trawling, for example, can make available previously unexploited food resources by gathering prey that may otherwise be too fast or deep for normal E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules predation, or may concentrate calories in an otherwise patchy landscape (Fertl and Leatherwood, 1997). Pilot whales, which are generally considered to be teuthophagous (i.e., feeding primarily on squid), were commonly observed in association with Atlantic mackerel (Scomber scombrus) trawl fisheries from 1977–88 in the northeast U.S. EEZ (Waring et al., 1990). Not surprisingly, stomach contents of captured whales contained high proportions of mackerel (68 percent of non-trace food items), indicating that the ready availability of a novel, concentrated, high-calorie prey item resulted in changed dietary composition (Read, 1994). These interactions can result in injury or death for the animal(s) involved and/ or damage to fishing gear. Coastal animals, including various pinnipeds, bottlenose dolphins, and harbor porpoises, are perhaps the most vulnerable to these interactions with set or passive fishing gear (e.g., gillnets, traps) the most likely culprit (e.g., Beverton, 1985; Barlow et al., 1994; Read et al., 2006; Byrd et al., 2014; Lewison et al., 2014). However, interactions with trawls and longlines may also occur and therefore also warrant mitigation measures (NMFS, 2017). Although all marine mammal species have some risk for interaction with fishing gear (e.g., Northridge, 1984), the extent of interactions is likely dependent on the biology, ecology, and behavior of the species involved and the type, location, and nature of the fishery. Trawl Nets—As described previously, trawl nets are towed nets (i.e., active fishing) consisting of a cone-shaped net with a codend or bag for collecting the fish and can be designed to fish at the bottom, surface, or any other depth in the water column. Here we refer to bottom trawls and pelagic trawls (midwater or surface, i.e., any net not designed to tend the bottom while fishing). Trawl nets can capture or entangle marine mammals. This may occur in bottom trawls, presumably when marine mammals feed on fish caught therein, and in pelagic trawls which may or may not be coincident with marine mammals feeding (Northridge, 1984). Capture or entanglement may occur whenever marine mammals are swimming near the gear, intentionally (e.g., foraging) or unintentionally (e.g., migrating), and any animal captured in a net is at significant risk of drowning unless quickly freed. Netting and tow lines (also called lazy lines) may also entangle around the a marine mammal’s head, body, flukes, pectoral fins, or dorsal fin. Interaction that does not result in the immediate death of the VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 animal by drowning can cause injury (i.e., Level A harassment) or serious injury. Constricting lines wrapped around the animal can immobilize the animal or injure by cutting into or through blubber, muscles and bone (i.e., penetrating injuries) or constricting blood flow to or severing appendages. Immobilization of the animal, if it does not result in immediate drowning, can cause internal injuries from prolonged stress and/or severe struggling and/or impede the animal’s ability to feed (resulting in starvation or reduced fitness) (Andersen et al., 2008). Marine mammal interactions with trawl nets, through capture or entanglement, are well-documented. Dolphins are known to attend operating nets in order to either benefit from disturbance of the bottom or to prey on discards or fish within the net. For example, Leatherwood (1975) reported that the most frequently observed feeding pattern for bottlenose dolphins in the Gulf of Mexico involved herds following working shrimp trawlers, apparently feeding on organisms stirred up from the benthos. Bearzi and di Sciara (1997) opportunistically investigated working trawlers in the Adriatic Sea from 1990–94 and found that ten percent were accompanied by foraging bottlenose dolphins. Pelagic trawls appear to have greater potential to capture cetaceans, because the nets may be towed at faster speeds, these trawls are more likely to target species that are important prey for marine mammals (e.g., squid, mackerel), and because pelagic trawls often fish in deeper waters with potential for a more diverse assemblage of species (Hall et al., 2000). Globally, at least 17 cetacean species are known to feed in association with trawlers and trawl nets have killed individuals of at least 25 species, including several large whales, porpoises, and a variety of delphinids (Perez, 2006; Young and Iudicello, 2007; Karpouzli and Leaper, 2004; Hall et al., 2000; Fertl and Leatherwood, 1997; Northridge, 1991; Song et al., 2010). Trawls have killed at least eighteen species of seals and sea lions (Wickens, 1995; Perez, 2006; Zeeberg et al., 2006). Records of direct interaction between trawl nets and marine mammals (both cetaceans and pinnipeds) exist where trawling and animals co-occur. A lack of recorded interactions where animals are known to be present may indicate simply that trawling is absent or are an insignificant component of fisheries in that region or that interactions were not observed, recorded, or reported. In evaluating risk relative to a specific fishery (or comparable research survey), PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 15319 one must consider the size of the net as well as frequency, timing, and location of deployment. These considerations inform determinations of whether marine mammal take is likely. Other NMFS science centers have records of marine mammal take from bottom, surface, and midwater trawl nets. However, PIFSC has no history of marine mammal take from trawl nets used during PIFSC fisheries and ecosystem surveys. Longlines—Longlines are a passive fishing technique of consisting of strings of baited hooks that are either anchored to the bottom (targeting groundfish), or are free-floating (targeting pelagic species). PIFSC does not utilize freefloating longlines. Any longline generally consists of a mainline from which leader lines (gangions) with baited hooks branch off at a specified interval. Bottom longlines may be of monofilament or multifilament natural or synthetic lines. The longline is left to passively fish (i.e, soak) for a set period of time before the vessel returns to retrieve the gear. Two or more floats act as visual markers to facilitate gear retrieval. Longlines may also utilize radio beacons to assist gear detection. Radio beacons are particularly import for pelagic longlines that may drift a significant distance from the deployment location. Marine mammals may be hooked or entangled in longline gear, with interactions potentially resulting in death due to drowning, strangulation, severing of carotid arteries or the esophagus, infection, an inability to evade predators, or starvation due to an inability to catch prey (Hofmeyr et al., 2002), although it is more likely that marine mammals will survive if they can reach the surface to breathe. Injuries, including serious injury, may consist of lacerations and puncture wounds. Animals may attempt to depredate on either bait or catch, with subsequent hooking, or may become accidentally entangled. As described for trawls, entanglement can lead to constricting lines wrapped around the animals and/or immobilization, and even if entangling materials are removed the wounds caused may continue to weaken the animal or allow further infection (Hofmeyr et al., 2002). Large whales may become entangled in a longline and then break free with a portion of gear trailing, resulting in alteration of swimming energetics due to drag and ultimate loss of fitness and potential mortality (Andersen et al., 2008). Weight of the gear can cause entangling lines to further constrict and further injure the animal. Hooking injuries and ingested gear are most E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15320 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules common in small cetaceans and pinnipeds, but have been observed in large cetaceans (e.g., sperm whales). The severity of the injury depends on the species, whether ingested gear includes hooks, whether the gear works its way into the gastrointestinal (GI) tract, whether the gear penetrates the GI lining, and the location of the hooking (e.g., embedded in the animal’s stomach or other internal body parts) (Andersen et al., 2008). Bottom longlines pose less of a threat to marine mammals due to their deployment on the ocean bottom but can still result in entanglement in buoy lines or hooking as the line is either deployed or retrieved. The rate of interaction between longline fisheries and marine mammals depends on the degree of overlap between longline effort and species distribution, hook style and size, type of bait and target catch, and fishing practices (such as setting/hauling during the day or at night). As was noted for trawl nets, many species of cetaceans and pinnipeds are documented to have been killed by longlines, including several large whales, porpoises, a variety of delphinids, seals, and sea lions (Perez, 2006; Young and Iudicello, 2007; Northridge, 1984, 1991; Wickens, 1995). Records of direct interaction between longlines and marine mammals (both cetaceans and pinnipeds) exist where longline fishing and animals co-occur. A lack of recorded interactions where animals are known to be present may indicate simply that longlining is absent or an insignificant component of fisheries in that region or that interactions were not observed, recorded, or reported. In evaluating risk relative to a specific fishery (or research survey), one must consider the length of the line and number of hooks deployed as well as frequency, timing, and location of deployment. These considerations inform determinations of whether interaction with marine mammals is likely. PIFSC has not recorded marine mammal interactions or takes with any longline survey. While a lack of historical interactions does not in and of itself indicate that future interactions are unlikely, we believe that the historical record, considered in context with the frequency and timing of these activities, as well as mitigation measures employed indicate that future marine mammal interactions with these gears would be uncommon. Other research gear—PIFSC conducts a variety of instrument deployments and insular fish abundance surveys between 50m and 600m and bottomfish essential fish habitat (EFH) surveys between 100– VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 400m (see Table 1.1 in PIFSC’s application) using gear similar to that used in a variety of commercial fisheries. Thus such research gear has the potential for entangling marine mammals surfacing from dives. Such ‘‘instrument deployments’’ include aMOUSS, BotCam, BRUVS deployed from a vessel and connected to the surface with a line to a float or vessel; environmental sampling instruments deployed by line such as CTD; baited or unbaited bottom traps such as lobster traps and fish traps deployed from a vessel and connected to the surface with line to a float. All other gears used in PIFSC fisheries research (e.g., various plankton nets, CTDs, remotely operated vehicles (ROVs)) do not have the expected potential for marine mammal interactions. PIFSC has no record of marine mammal interaction or takes from these types of gear. Specifically, we consider CTDs, ROVs, small surface trawls, plankton nets, other small nets, camera traps, dredges, and vertically deployed or towed imaging systems to be no-impact gear types. Unlike trawl nets, seine nets, and longline gear, which are used in both scientific research and commercial fishing applications, these other gears are not considered similar or analogous to any commercial fishing gear and are not designed to capture any commercially salable species, or to collect any sort of sample in large quantities. They are not considered to have the potential to take marine mammals primarily because of their design or how they are deployed. For example, CTDs are typically deployed in a vertical cast on a cable and have no loose lines or other entanglement hazards. A Bongo net is typically deployed on a cable, whereas neuston nets (these may be plankton nets or small trawls) are often deployed in the upper one meter of the water column; either net type has very small size (e.g., two bongo nets of 0.5 m2 each or a neuston net of approximately 2 m2) and no trailing lines to present an entanglement risk. These other gear types are not considered further in this document. Acoustic Effects Detailed descriptions of the potential effects of PIFSC’s use of acoustic sources are provided in other Federal Register notices for incidental take regulations issued to other NMFS Science Centers (e.g., the ‘‘Acoustic Effects’’ section of the proposed rule for the taking of marine mammals incidental to NMFS Alaska Fisheries Science Center fisheries research (83 FR 37660; August 1, 2018) and the PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 ‘‘Potential Effects of Underwater Sound’’ section of the proposed rule for the taking of marine mammals incidental to NMFS Southeast Fisheries Science Center research (84 FR 6603; February 27, 2019)). No significant new information is available, and those discussions provide the necessary adequate and relevant information regarding the potential effects of PIFSC’s specified activity on marine mammals and their habitat. Therefore, we refer the reader to those documents rather than repeating the information here. Exposure to sound through the use of active acoustic systems for research purposes may result in Level B harassment. However, as detailed in the previously referenced discussions, Level A harassment in the form of permanent threshold shift (PTS) is extremely unlikely to occur, and we consider such effects discountable. With specific reference to Level B harassment that may occur as a result of acoustic exposure, we note that the analytical methods described in the incidental take regulations for other NMFS Science Centers are retained here. However, the state of science with regard to our understanding of the likely potential effects of the use of systems like those used by PIFSC has advanced in recent years, as have readily available approaches to estimating the acoustic footprints of such sources, with the result that we view this analysis as highly conservative. Although more recent literature provides documentation of marine mammal responses to the use of these and similar acoustic systems (e.g., Cholewiak et al., 2017; Quick et al., 2017; Varghese et al., 2020), the described responses do not generally comport with the degree of severity that should be associated with Level B harassment, as defined by the MMPA. We retain the analytical approach described in the incidental take regulations for other NMFS Science Centers for consistency with existing analyses and for purposes of efficiency here, and consider this acceptable because the approach provides a conservative estimate of potential incidents of Level B harassment (see ‘‘Estimated Take’’ section of this document). In summary, while we propose to authorize the amount of take by Level B harassment indicated in the ‘‘Estimated Take’’ section, and consider these potential takings at face value in our negligible impact analysis, it is uncertain whether use of these acoustic systems are likely to cause take at all, much less at the estimated levels. E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules Potential Effects of Visual Disturbance Hawaiian monk seals occur in the HARA and WCPRA. Hawaiian monk seals use numerous sites in the MHI and the NWHI to haul out (e.g., sandy beaches, rocky outcroppings, exposed reefs). Here, the physical presence and sounds of researchers walking by or passing nearby in small boats may disturb animals present. PIFSC expects some of these animals will exhibit a behavioral response to the visual stimuli (e.g., including alert behavior, movement, vocalizing, or flushing). NMFS does not consider the lesser reactions (e.g., alert behavior) to constitute harassment. These events are expected to be infrequent and cause only a temporary disturbance on the order of minutes. Monitoring results from other activities involving the disturbance of pinnipeds and relevant studies of pinniped populations that experience more regular vessel disturbance indicate that individually significant or population level impacts are unlikely to occur (e.g., Henry and Hammil, 2001). In areas where disturbance of haulouts due to periodic human activity (e.g., researchers approaching on foot, passage of small vessels, maintenance activity) occurs, monitoring results have generally indicated that pinnipeds typically move or flush from the haulout in response to human presence or visual disturbance, although some individuals typically remain hauledout (e.g., SCWA, 2012). Upon the occurrence of lowseverity disturbance (i.e., the approach of a vessel or person as opposed to an explosion or sonic boom), pinnipeds typically exhibit a continuum of responses, beginning with alert movements (e.g., raising the head), which may then escalate to movement away from the stimulus and possible flushing into the water. Flushed pinnipeds typically re-occupy the haulout within minutes to hours of the stimulus (Acevedo-Gutierrez and Johnson 2007). In a popular tourism area of the Pacific Northwest where human disturbances occurred frequently, past studies observed stable populations of seals over a twenty-year period (Calambokidis et al., 1991). Despite high levels of seasonal disturbance by tourists using both motorized and nonmotorized vessels, Calambokidis et al. (1991) observed an increase in site use (pup rearing) and classified this area as one of the most important pupping sites for seals in the region. Another study observed an increase in seal vigilance when vessels passed the haulout site, but then vigilance relaxed within ten VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 minutes of the vessels’ passing (Fox, 2008). If vessels passed frequently within a short time period (e.g., 24 hours), a reduction in the total number of seals present was also observed (Fox, 2008). Level A harassment, serious injury, or mortality could likely only occur as a result of trampling in a stampede (a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus) or abandonment of pups. Pups could be present at times during PIFSC research effort, but PIFSC researchers take precautions to minimize disturbance and prevent any possibility of stampedes, including choosing travel routes as far away from hauledout pinnipeds as possible and by moving sample site locations to avoid consistent haulout areas. In addition, Hawaiian monk seals do not typically haul out in large groups where stampedes would be of concern. Disturbance of pinnipeds caused by PIFSC survey activities would be expected to last for only short periods of time, separated by significant amounts of time in which no disturbance occurred. Because such disturbance is sporadic, rather than chronic, and of low intensity, individual marine mammals are unlikely to incur any detrimental impacts to vital rates or ability to forage and, thus, loss of fitness. Correspondingly, even local populations, much less the overall stock of animals, are extremely unlikely to accrue any significantly detrimental impacts. Anticipated Effects on Marine Mammal Habitat Effects to Prey—In addition to direct, or operational, interactions between fishing gear and marine mammals, indirect (i.e., biological or ecological) interactions occur as well, in which marine mammals and fisheries both utilize the same resource, potentially resulting in competition that may be mutually disadvantageous (e.g., Northridge, 1984; Beddington et al., 1985; Wickens, 1995). Marine mammal prey varies by species, season, and location and, for some marine mammals, is not well documented. PIFSC fisheries research removals of species commonly utilized by marine mammals are relatively low. Prey of sei whales and blue whales are primarily zooplankton, which are targeted by PIFSC fisheries research with collection only on the order of liters, so the likelihood of research activities changing prey availability is low and impact negligible to none. Humpback whales do not feed within the PIFSC PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 15321 region of fisheries research, so there is no effect (Herman et al., 2007). PIFSC fisheries research activities may affect sperm whale prey (squid), but this is expected to be minor due to the insignificant amount of squid removed through fisheries research (i.e., hundreds of pounds). There may be some minor overlap between the RAMP survey removals of a variety of reef fishes and the Insular Fish Abundance Estimation Comparison Surveys. By example, in the main Hawaiian Islands, the majority of sampling for these surveys is at the periphery of monk seal foraging habitat and is a tiny fraction of what is taken by monk seals or by apex predatory fish or non-commercial fisheries (Sprague et al. 2013, Kobayashi and Kawamoto 1995). In the case of false killer whale consumption of tunas, mahi, and ono, there may be some minor overlap with fisheries research removals in the pelagic longline research. However, here the removal by PIFSC fisheries research, regardless of season and location is minor relative to that taken through commercial fisheries. For example, commercial fisheries catches for most pelagic species typically range from the hundreds to thousands of metric tons, whereas the catch in similar fisheries research activities would only occasionally range as high as hundreds to thousands of pounds in any particular year (see Sections 4.2.3 and 4.3.3 of the PIFSC EA for more information on fish catch during research surveys and commercial harvest). Research catches are also distributed over a wide area because of the random sampling design covering large sample areas. Fish removals by research are therefore highly localized and unlikely to affect the spatial concentrations and availability of prey for any marine mammal species. The overall effect of research catches on marine mammals through competition for prey may therefore be considered insignificant for all species. Acoustic Habitat—Acoustic habitat is the soundscape—which encompasses all of the sound present in a particular location and time, as a whole—when considered from the perspective of the animals experiencing it. Animals produce sound for, or listen for sounds produced by, conspecifics (communication during feeding, mating, and other social activities), other animals (finding prey or avoiding predators), and the physical environment (finding suitable habitats, navigating). Together, sounds made by animals and the geophysical environment (e.g., produced by earthquakes, lightning, wind, rain, E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15322 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules waves) make up the natural contributions to the total acoustics of a place. These acoustic conditions, termed acoustic habitat, are one attribute of an animal’s total habitat. Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic, or may be intentionally introduced to the marine environment for data acquisition purposes (as in the PIFSC’s use of active acoustic sources). Anthropogenic noise varies widely in its frequency content, duration, and loudness and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please also see the discussion on masking in the Acoustic Effects’’ section of the proposed rule for the taking of marine mammals incidental to NMFS Alaska Fisheries Science Center fisheries research (83 FR 37660; August 1, 2018)), which may range from local effects for brief periods of time to chronic effects over large areas and for long durations. Depending on the extent of effects to habitat, animals may alter their communications signals (thereby potentially expending additional energy) or miss acoustic cues (either conspecific or adventitious). For more detail on these concepts see, e.g., Barber et al., 2010; Pijanowski et al., 2011; Francis and Barber, 2013; Lillis et al., 2014. Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic and overlap with biologically relevant cues used for communication, orientation, and predator/prey detection (Francis and Barber, 2013). As described above (‘‘Acoustic Effects’’), the signals emitted by PIFSC active acoustic sources are generally high frequency, of short duration, and transient. These factors mean that the signals will attenuate rapidly (not travel over great distances), may not be perceived or affect perception even when animals are in the vicinity, and would not be considered chronic in any given location. PIFSC use of these sources is widely dispersed in both space and time. In conjunction with the prior factors, this means that it is highly unlikely that PIFSC use of these sources would, on their own, have any appreciable effect on acoustic habitat. Sounds emitted by PIFSC vessels would be of lower frequency and continuous, but would also be widely dispersed in both space and time. PIFSC vessel traffic—including both sound from the vessel itself and from the active acoustic sources—is of very low density compared to commercial shipping VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 traffic or commercial fishing vessels and would therefore represent an insignificant incremental increase in the total amount of anthropogenic sound input to the marine environment. Physical Habitat—PIFSC conducts some bottom trawling, which may physically damage seafloor habitat. In addition, PIFSC fishery research activities and funded fishery research activities use bottom contact fishing gear, including deep-set longline, lobster traps, and settlement traps. These fishing gears contact the seafloor and may cause physical damage but the impacts are localized and minimal as this type of gear is fixed in position rather than towed across the sea floor. Physical damage may include furrowing and smoothing of the seafloor as well as the displacement of rocks and boulders, and such damage can increase with multiple contacts in the same area (Schwinghamer et al., 1998; Kaiser et al., 2002; Malik and Mayer, 2007; NRC, 2002). The effects of bottom contact gear differ in each type of benthic environment. In sandy habitats with strong currents, the furrows created by mobile bottom contact gear quickly begin to erode because lighter weight sand at the edges of furrows can be easily moved by water back towards the center of the furrow (NRC, 2002). Duration of effects in these environments therefore tend to be very short because the terrain and associated organisms are accustomed to natural disturbance. By contrast, the physical features of more stable hard bottom habitats are less susceptible to disturbance, but once damaged or removed by fishing gear, the organisms that grow on gravel, cobbles, and boulders can take years to recover, especially in deeper water where there is less natural disturbance (NRC, 2002). However, the area of benthic habitat affected by PIFSC research each year would be a very small fraction of total area of benthic habitat in the four research areas and effects are not expected to occur in areas of particular importance. Damage to seafloor habitat may also harm infauna and epifauna (i.e., animals that live in or on the seafloor or on structures on the seafloor), including corals (Schwinghamer et al., 1998; Collie et al., 2000; Stevenson et al., 2004). In general, recovery from biological damage varies based on the type of fishing gear used, the type of seafloor surface (i.e., mud, sand, gravel, mixed substrate), and the level of repeated disturbances. Recovery timelines of 1–18 months are expected. However, repeated disturbance of an area can prolong the recovery time PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 (Stevenson et al., 2004), and recovery of corals may take significantly longer than 18 months. The Deep Coral and Sponge Research Survey collect small pieces of coral for DNA samples, voucher specimens, and paleoclimate samples. The combined sampling of these studies amounts to about 5.5 pounds/year. Together, these coral samples comprise a small percentage of the total population of coral colonies (see Section 4.2.7 of the PIFSC EA). The RAMP Survey collects up to 500 samples per year of corals (including ESA-listed species), coral products, algae and algal products, and sessile invertebrates. The NMFS Pacific Islands Regional Office has issued a Biological Opinion concluding that PIFSC surveys are not likely to jeopardize the continued existence of any coral species taken. As described in the preceding, the potential for PIFSC research to affect the availability of prey to marine mammals or to meaningfully impact the quality of physical or acoustic habitat is considered to be insignificant for all species. Effects to marine mammal habitat will not be discussed further in this document. Estimated Take This section provides an estimate of the number of incidental takes proposed for authorization. The estimated take informs NMFS’ determination of whether the number of takes are ‘‘small’’ and the negligible impact determination. Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Take of marine mammals incidental to PIFSC research activities could occur as a result of (1) injury or mortality due to gear interaction (Level A harassment, serious injury, or mortality); (2) behavioral disturbance resulting from the use of active acoustic sources (Level B harassment only); or (3) behavioral disturbance of pinnipeds resulting from incidental approach of researchers and research vessels (Level B harassment only). Below we describe how the potential take is estimated. E:\FR\FM\22MRP2.SGM 22MRP2 15323 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules Estimated Take Due to Gear Interaction The use of historical interactions as a basis to estimate future take of marine mammals in fisheries research gear has been utilized in the LOA applications and rules of other NMFS Fisheries Science Centers (e.g., Southwest (SWFSC), Northwest (NWFSC)). However, because PIFSC has no history of marine mammal take in any of the gear used during its fisheries and ecosystem research, additional factors must be considered. Instead, NMFS used information from commercial fisheries, other NMFS Fisheries Science Centers operations, and published take as described below. NMFS believes it is appropriate to include estimates for future incidental takes of a number of species that have not been taken by PIFSC historically, but inhabit the same areas and show similar types of behaviors and vulnerabilities to gear used by other NMFS Fisheries Science Centers and used in commercial fisheries (based on the 2019 List of Fisheries (LOF), see https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-protection-act-listfisheries). A number of factors were taken into account to determine whether a species may have a similar vulnerability to certain types of gear as species taken in commercial gear and research gear elsewhere (e.g., distribution, density, abundance, behavior, feeding ecology, travel in groups, and common association with other species historically taken in commercial gear or other Fisheries Science Centers). While such take could potentially occur, NMFS believes that any occurrences would likely be rare given that no such take in PIFSC research has occurred (despite many years of the same or similar surveys occurring). Moreover, marine mammal behavioral and ecological characteristics reduce the risk of incidental take from research gear, and the required mitigation measures reduce the risk of incidental take. As background to the process of determining which species not historically taken may have sufficient vulnerability to capture in PIFSC gear to justify inclusion in these proposed regulations, we note that the PIFSC is NMFS’s research arm in the central and western Pacific Ocean and may be considered as a leading source of expert knowledge regarding marine mammals (e.g., behavior, abundance, density) in the areas where they operate. The species for which the take request was formulated were selected by the PIFSC, and we have concurred with these decisions. While PIFSC has not historically taken marine mammal species in its longline gear, it is well documented that some species potentially encountered during PIFSC surveys are taken in commercial longline fisheries. In order to evaluate the potential vulnerability of species to trawl and longline fishing gear and entanglement from instrument deployment and traps, we first consulted the List of Fisheries (LOF). The LOF classifies U.S. commercial fisheries into one of three categories according to the level of incidental marine mammal M/SI that occurs on an annual basis over the most recent fiveyear period (generally) for which data has been analyzed: Category I, frequent incidental M/SI; Category II, occasional incidental M/SI; and Category III, remote likelihood of or no known incidental M/SI. We provide summary information, as presented in the 2020 LOF (85 FR 21079; April 16, 2020), in Table 6. In order to simplify information presented, and to encompass information related to other similar species from different locations, we group marine mammals by genus (where there is more than one member of the genus found in U.S. waters). Where there are documented incidents of M/SI incidental to relevant commercial fisheries, we note whether we believe those incidents provide sufficient basis upon which to infer vulnerability to capture in PIFSC research gear. For a listing of all Category I, II, and II fisheries using relevant gears, associated estimates of fishery participants, and specific locations and fisheries associated with the historical fisheries takes indicated in Table 4 below, please see the 2020 LOF. For specific numbers of marine mammal takes associated with these fisheries, please see the relevant SARs. More information is available online at https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-protection-act-list-fisheries and https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-stock-assessments. TABLE 6—U.S. COMMERCIAL FISHERIES INTERACTIONS FOR TRAWL AND LONGLINE GEAR FOR RELEVANT SPECIES Species 1 Trawl 2 Vulnerability inferred? 3 Longline 2 Vulnerability inferred 3 Bottlenose dolphin ........................................................................................................... False killer whale ............................................................................................................. Humpback whale ............................................................................................................. Kogia spp. ........................................................................................................................ Pygmy killer whale ........................................................................................................... Risso’s dolphin ................................................................................................................. Rough-toothed dolphin .................................................................................................... Short-finned pilot whale ................................................................................................... Sperm whale .................................................................................................................... Striped dolphin ................................................................................................................. Cuvier’s beaked whale .................................................................................................... Blainville’s beaked whale ................................................................................................. Pantropical spotted dolphin ............................................................................................. Spinner dolphin ................................................................................................................ N N N N N N N N N N N N N N Y N N N N N Y N N Y N N Y Y Y Y Y Y Y Y Y Y Y Y Y Y N N Y Y Y Y Y Y Y Y Y Y Y Y Y Y jbell on DSKJLSW7X2PROD with PROPOSALS2 1 Please refer to Table 3 for taxonomic reference. whether any member of the species has documented incidental M/SI in a U.S. fishery using that gear in the most recent five-year timespan for which data is available. 3 Indicates whether NMFS has inferred that a species not historically taken by PIFSC has the potential to be taken in the future based on records of marine mammals taken by U.S. commercial fisheries. Y = yes, N = no. 2 Indicates Information related to incidental M/SI in relevant commercial fisheries is not, VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 however, the sole determinant of appropriateness for authorizing take PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 incidental to PIFSC survey operations. Numerous factors (e.g., species-specific E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15324 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules knowledge regarding animal behavior, overall abundance in the geographic region, density relative to PIFSC survey effort, feeding ecology, propensity to travel in groups commonly associated with other species historically taken) were considered by the PIFSC to determine whether a species not previously taken by PIFSC may be taken during future research activities. In some cases, NMFS have determined that species without documented M/SI may nevertheless be vulnerable to capture in PIFSC research gear. Those species with no records of historical interaction with PIFSC research gear and no documented M/SI in relevant commercial fisheries, and for which the PIFSC has not requested the authorization of incidental take, are not considered further in this section. The PIFSC believes generally that any sex or age class of those species for which take authorization is requested could be taken. To estimate the potential number of takes by M/SI from PIFSC research gear, we first determine which species may have vulnerability to capture by gear type. Of those species, we then determine whether any may have similar propensity to be taken by a given gear as a historically-taken species in U.S. commercial fisheries (inferred vulnerability). For these species, we assume it is possible that take could occur while at the same time contending that, absent significant range shifts or changes in habitat usage, capture of a species not historically taken by PIFSC research activities would likely be a very rare event. Therefore, we assume that take by PIFSC would be a rare event such that authorization of a single take over the five-year period, for each region where the gear is used and the species is present, is likely sufficient given the low risk of marine mammals interacting with PIFSC gear. Longline—While longline research would only be conducted outside of the longline exclusion areas (see https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/false-killerwhale-take-reduction), several species of small cetaceans were deemed to have a similar vulnerability to longline gear as some historically-taken species by other NMFS Fisheries Science Centers or by commercial fisheries using factors outlined above. The commercial fisheries, HI deep-set longline (Category 1) and the HI shallow-set longline and American Samoa longline (both Category II) fisheries, report taking marine mammals. The longline fisheries the LOF identifies having taken marine mammals on the High Seas are the Western Pacific Pelagic (HI Deep-set VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 component, Category 1) and Western Pacific Pelagic (HI Shallow-set component, Category II). PIFSC assumes any take of marine mammals in longline fisheries research activities will be a rare occurrence. As stated above, NMFS expects that take of marine mammals by M/SI by PIFSC would be a rare event such that no more than a single take of each species/stock by M/SI over the five-year period, is reasonably likely to occur. Therefore, PIFSC requested one take in longline gear over the five-year authorization period throughout the PIFSC research area for each of the following species: Bottlenose dolphin (Hawai1i pelagic stock), Blainville’s beaked whale (Hawai1i pelagic stock), Cuvier’s beaked whale (Hawai1i pelagic stock), Kogia spp. (Hawai1i stocks), false killer whale (Hawai1i pelagic stock), Pantropical spotted dolphin (all stocks), pygmy killer whale (Hawai1i stock), rough toothed dolphin (Hawai1i stock), Risso’s dolphin (Hawai1i stock), short-finned pilot whale (Hawai1i stock), and striped dolphin (Hawai1i stock) (Table 5). While the LOF includes commercial fishery takes of false killer whales and roughtoothed dolphins from the respective American Samoa stocks, PIFSC is not requesting take by M/SI of these species/stocks because they do not anticipate conducting longline research anywhere within the range of these species/stocks throughout the time period addressed by this application (e.g., longline surveys in the WCPRA would occur within 500 nmi of the HARA, which is at least 1600 nmi from the ASARA and outside of the range of the American Samoa stocks of false killer whales and rough-toothed dolphins). Additionally, the LOF includes commercial fishery takes of the MHI insular stock of false killer whales, but PIFSC will not be conducting longline research within the stock’s range, and so is not requesting M&SI/ Level A takes of this stock. Spinner dolphins have not been reported taken in Hawai1i based longline fisheries in the LOF. The PIFSC is therefore not requesting any take of this species in analogous fisheries research gear. While PIFSC has not historically taken large whales in its longline gear, these species are taken in commercial longline fisheries. There are two large whale species that have been taken by commercial longline fisheries and for which PIFSC is requesting a single take each over the five-year authorization period in longline gear: The humpback whale and the sperm whale. Both of these species are listed as endangered under the ESA and thus by definition, depleted under the MMPA. Although PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 large whale species could become entangled in longline gear, the probability of interaction with PIFSC longline gear is extremely low considering a much lower level of survey effort and shorter duration sets relative to that of commercial fisheries. For example, in 2014 approximately 47.1 million hooks were deployed in commercial longline fishing in the PIFSC research areas (see https:// www.fisheries.noaa.gov/resource/data/ hawaii-longline-fishery-logbooksummary-reports); in contrast PIFSC proposes to deploy up to 73,500 hooks/ year or 0.0015 percent of the effort in these commercial fisheries. The mitigation measures taken by PIFSC are also expected to reduce the likelihood of taking large whales (see Proposed Mitigation section) Although there is only a limited potential for take, PIFSC is requesting one take of humpback whale (central North Pacific stock) in longline gear and one take of a sperm whale (Hawai1i stock) by M/SI based on analogy with commercial fisheries over the five-year authorization period of this application. Trawl—Although PIFSC has never taken small delphinids in a pelagic midwater trawl such as an Isaacs-Kidd or Cobb trawl, and no commercial trawl fisheries in PIFSC research areas have reported takes, there is a remote possibility such a take could occur. This research targets very small pelagic species (e.g., micronekton, pelagic larvae) not likely to attract foraging small delphinids. Thus incidental catch of a small delphinid is unlikely in either technique but even less so for the IsaacsKidd trawl due to the very small opening (about 3 m x 3 m) whereas the mouth of the PIFSC Cobb trawls are about 10 m x 10 m. However, to address a rare situation or event, PIFSC requests one take each of the following small delphinids in trawl gear over the five year period of this application: Bottlenose dolphin (all stocks), roughtoothed dolphin (Hawai1i stock), spinner dolphin (all stocks), Pantropical spotted dolphin (all stocks), and striped dolphin (Hawai1i stock). Instrument and Trap Deployments— Humpback whales inhabit shallow waters, typically within the 100-fathom isobaths in the HARA (Baird et al., 2000). PIFSC conducts a variety of instrument deployments and insular fish abundance surveys between 50 m and 600 m and bottomfish EFH surveys between 100–400 m (see Table 1.1 in PIFSC’s application) using gear similar to that used in a variety of commercial fisheries. Thus such research gear has the potential for entangling humpback whales surfacing from dives. Such E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules instruments include aMOUSS, BotCam, BRUVS deployed from a vessel and connected to the surface with a line to a float or vessel; environmental sampling instruments deployed by line; and baited or unbaited bottom traps such as lobster traps and fish traps deployed from a vessel and connected to the surface with line to a float. Therefore PIFSC is requesting one take of humpback whale (central North Pacific stock) in gear associated with deployed instruments and traps. In addition, based on a similarity in behavior, several species of ‘‘curious’’ small delphinids have the potential for becoming entangled in gear associated with instrument deployments. PIFSC has established mitigation measures already in place to reduce potential interactions (e.g., no deployment when marine mammals are known to be in the immediate area). Because there is a remote chance such entanglement may occur when an animal investigates such gear, PIFSC requests one take each over the five-year authorization period of each of the following small delphinid species: Bottlenose dolphin (all stocks), rough-toothed dolphin (Hawai1i stock), spinner dolphin (all stocks), and Pantropical spotted dolphin (all stocks) in ‘‘instrument deployment’’ gears. Other gear—PIFSC considered the risk of interaction with marine mammals for all the research gear and instruments it uses, but PIFSC did not request incidental takes for research gear other than midwater trawls, longline, instrument deployments, and traps. PIFSC acknowledges that by having hooks, nets, lines, or vessels in the water there is a potential for incidental take of marine mammals during research activities. However, many of the fisheries and ecosystem research activities conducted by PIFSC involve gear or instruments that do not present a large enough risk to be included as part of the mortality, serious injury, or Level A harassment take request. These include gear and instruments that are operated by hand or close enough to the vessel that they can be continuously observed and controlled such as dip nets, scoop nets, handheld gear and instruments used by SCUBA divers or free divers (cameras, transect lines, and spears), environmental data collectors deployed or attached by hand to the reef, marine debris removal tools (knives and float bags), and small surface net trawls adjacent to the vessel. Other gear or instruments that are used so infrequently, operate so slowly, or carried out with appropriate mitigation measures so as not to present a reasonable risk of interactions with VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 marine mammals include: Autonomous vehicles such as gliders, autonomous underwater vehicles (AUVs), unmanned aerial vehicles (UAVs), unmanned aircraft systems (UASs), and towed optical assessment devices (TOADs); submersibles; towed-divers; troll fishing; larval settlement traps temporarily installed on the reef; expendable bathythermographs (XBTs); and environmental data collectors temporarily deployed from a vessel to the seafloor and then retrieved remotely such as high-frequency recording packages (HARPs) and ecological acoustic readers (EARs). Please refer to Table 1.1 and Appendix A in PIFSC’s application for a list of the research projects that use this gear and descriptions of their use. The gear and instruments listed above are not considered to have a reasonable potential to take marine mammals given their physical characteristics, how they are fished, and the environments where they are used. There have been no marine mammal mortalities, serious injuries, or other Level A takes associated with any of these gear types. Because of this, PIFSC does not expect these activities to result in take of marine mammals in the PIFSC research areas, and as such is not requesting marine mammal take for these gears or instruments. Bottomfishing—There is evidence that cetaceans and Hawaiian monk seals occasionally pursue fish caught on various hook-and-line gear (depredation of fishing lines) deployed in commercial and non-commercial fisheries across Hawai1i (Nitta and Henderson 1993, Kobayashi and Kawamoto 1994). This depredation behavior, which is documented as catch loss from the hook-and-line gear, may be beneficial to the marine mammal in providing prey but it also opens the possibility for the marine mammal to be hooked or entangled in the gear. PIFSC gave careful consideration to the potential for including incidental take requests for marine mammals in bottom handline (bottomfishing) gear because of the planned increase in research effort using that gear in the Insular Fish Abundance Estimation Comparison Survey (from approximately 700 sets per year to over 7000 sets per year). PIFSC has not had any interactions in the past with marine mammals while conducting research with bottomfishing gear in the MHI. Bottlenose dolphins have been identified as the primary species associated with depredation of catch in the bottomfish fishery and they appear to be adept at pulling hooked fish from the gear without breaking the line or taking hooks off the line (Kobayashi and PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 15325 Kawamoto 1994). It is not known if these interactions result in injury, serious injury, or mortality of bottlenose dolphins or other cetaceans (Caretta et al., 2015). No mortality or serious injuries of monk seals have been attributed to the MHI bottomfish handline fishery (Caretta et al., 2019). In 2016, 11 seal hookings were documented and all were classified as non-serious injuries, although six of these would have been deemed serious had they not been mitigated (Henderson 2017, Mercer 2018). The hook-and-line rigging used to target ulua (jacks, Caranx spp.) are typical of shoreline fisheries that are distinct from the bottomfishing gear and methods used by PIFSC during its fisheries and ecosystem research. Although there are some similarities between the shoreline fishery and the bottomfishing gear used by PIFSC (e.g., circle hooks), the general size and the way the hooks are rigged (e.g., baits, leaders, weights, tackle) are typically different and probably present different risks of incidental hooking to monk seals. Ulua hooks are generally much larger circle hooks than PIFSC uses because the targeted ulua are usually greater than 50 pounds in weight. Shoreline fisheries (deployed from shore with rod and reel) also typically use ‘‘slide bait’’ or ‘‘slide rigs’’ that allow the use of live bait (small fish or octopus) hooked in the middle of the bait. If a monk seal pursued this live bait and targeted the center of the bait or swallowed it whole, it could get hooked in the mouth. PIFSC research with bottomfishing gear uses pieces of fish for bait that attract bottomfish but not monk seals. Monk seals could be attracted to a caught bottomfish but, given the length of the target bottomfish, it is unlikely that a monk seal would be physically capable of swallowing the whole fish and thus swallowing the hook. The risk of monk seals getting hooked on bottomfishing gear used in PIFSC research is therefore less than the risk of getting hooked on shoreline hook-and-line gears which are identified in Caretta et al. (2019). PIFSC has no records of marine mammals interacting with bottomfishing research gear and given the mitigation measures the PIFSC would be required to implement for bottomfishing research to prevent marine mammals from interacting with bottomfishing activities (e.g., avoiding fishing when monk seals are present; see Proposed Mitigation below), NMFS has concluded that the risk of marine mammal interactions with its research bottomfishing gear is not high enough to warrant authorizing incidental take for E:\FR\FM\22MRP2.SGM 22MRP2 15326 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules marine mammals in that gear. These proposed regulations would require PIFSC to document potential depredation of its bottomfish research gear (catch loss) in the future, and increase monitoring efforts when catch loss becomes apparent, in an effort to better understand the potential risks of hooking to monk seals and other marine mammals. TABLE 7—TOTAL ESTIMATED TAKE DUE TO GEAR INTERACTION, 2021–26 A PIFSC potential M/SI Level A take request (all areas combined) Calculated average take per year Total takes over 5-year period Calculated average take per year Total takes over 5-year period Calculated average take per year Total takes over 5-year period Sum all gear (trawl, hook-andline, and instruments and traps) annual request .................... .................... 0.2 0.2 .................... .................... 1 1 0.2 0.2 0.2 .................... 1 1 1 .................... .................... .................... 0.2 0.2 .................... .................... 1 1 0.2 0.2 0.6 0.4 1 1 3 2 .................... .................... .................... 0.2 .................... .................... 0.2 .................... .................... .................... 1 .................... .................... 1 0.2 0.2 0.2 0.2 0.2 0.2 0.2 1c 1 1 1 1 1 1 .................... 0.2 .................... 0.2 .................... .................... 0.2 .................... 1 .................... 1 .................... .................... 1 0.2 0.4 0.2 0.6 0.2 0.2 0.6 1 2 1 3 1 1 3 .................... .................... .................... 0.2 0.2 .................... .................... .................... 1 1 0.2 0.2 0.2 .................... 0.2 1 1 1 .................... 1 0.2 .................... .................... 0.2 .................... 1 .................... .................... 1 .................... 0.4 0.2 0.2 0.4 0.4 2 1 1 2 2 Midwater trawl Instrument deployments and traps Hook-and-line Common name (stock) Blainville’s beaked whale (Hawai1i stock) ......... Cuvier’s Beaked whale (Hawai1i pelagic stock) Bottlenose dolphin (Hawai1i pelagic stock) ....... Bottlenose dolphin (All stocks, except above) .. False killer whale (Hawai1i pelagic or unspecified b) ............................................................. Humpback whale (Central North Pacific stock) Kogia spp. (Hawai1i stocks) ............................... Pantropical spotted dolphin (all stocks) ............ Pygmy killer whale (Hawai1i stock ) .................. Risso’s dolphin (Hawai1i stock) ......................... Rough-toothed dolphin (Hawai1i stock) ............. Rough-toothed dolphin (all stocks except above) ............................................................ Short-finned pilot whale (Hawai1i stock) ............ Sperm whale (Hawai1i stock ) ........................... Spinner dolphin (all stocks) ............................... Striped dolphin (all stocks) ................................ Sum all gears 5-year request a jbell on DSKJLSW7X2PROD with PROPOSALS2 a Please see Table 6 and preceding text for explanation of take estimates. Takes proposed for authorization are informed by area- and gear-specific vulnerability. Because we have no specific information to indicate whether any given future interaction might result in M/SI versus Level A harassment, we conservatively assume that all interactions equate to mortality for these fishing gear interactions. b Hawai1i pelagic stock is designated as strategic. ‘‘Unspecified stock’’ occurs on the high seas. c Longline research would only occur outside of FKW exclusion zone; potential take not in HARA, only within WCPRA. Estimated Take Due to Acoustic Harassment and the assumptions made that result in these estimates are described below. As described previously (‘‘Potential Effects of the Specified Activity on Marine Mammals and Their Habitat’’), we believe that PIFSC 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 PIFSC and acoustics experts from other parts of NMFS) developed an analytical framework considering characteristics of the active acoustic systems described previously under ‘‘Description of Active Acoustic Sound Sources,’’ their expected patterns of use, 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 may be seen as an overestimate of the potential for behavioral harassment to occur as a result of the operation of these systems. Additional details on the approach used Acoustic Thresholds Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals behavioral harassment (equated to Level B harassment) is reasonably expected or to incur PTS of some degree (Level A harassment). We note NMFS has begun efforts to update its behavioral thresholds, considering all available data, and is formulating a strategy for updating those thresholds for all types of sound sources considered in incidental take authorizations. It is NMFS’s intention to conduct both internal and external review of any new thresholds prior to finalizing this rule. In the interim, we apply the traditional thresholds. Level B Harassment for non-explosive sources—Though significantly driven by received sound level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). Based on the best available science and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 mPa (rms) for continuous (e.g. vibratory piledriving, drilling) and above 160 dB re 1 mPa (rms) for intermittent (e.g., scientific sonar, seismic airgun) sources. The Marine Mammal Commission (Commission) has previously suggested NMFS apply the 120 dB continuous Level B harassment threshold to scientific sonar such as the ones proposed by the PIFSC. NMFS has responded to this comment in multiple Federal Register notices of issuance for other NMFS science centers. Here we summarize why the 160 dB threshold is appropriate when estimating take from acoustic sources used during PIFSC research activities. NMFS historically E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules has referred to the 160 dB threshold as the impulsive threshold, and the 120 dB threshold as the continuous threshold, which in and of itself is conflicting as one is referring to pulse characteristics and the other is referring to the temporal component. A more accurate term for the impulsive threshold is the intermittent threshold. This distinction is important because, when assessing the potential for hearing loss (permanent threshold shift (PTS) or temporary threshold shift (TTS)) or nonauditory injury (e.g., lung injury), the spectral characteristics of source (impulsive vs. non-impulsive) is critical to assessing the potential for such impacts. However, for behavior, the temporal component is more appropriate to consider. Gomez et al. (2016) conducted a systematic literature review (370 papers) and analysis (79 studies, 195 data cases) to better assess probability and severity of behavioral responses in marine mammals exposed to anthropogenic sound. They found a significant relationship between source type and behavioral response when sources were split into broad categories that reflected whether sources were continuous, sonar, or seismic (the latter two of which are intermittent sources). Moreover, while Gomez et al (2017) acknowledges acoustically sensitive species (beaked whales and harbor porpoise), the authors do not recommend an alternative method for categorizing sound sources for these species when assessing behavioral impacts from noise exposure. To apply the continuous 120 dB threshold to all species based on data from known acoustically sensitive species (one species of which is the harbor porpoise, which does not inhabit PIFSC research areas) is not warranted, as it would be unnecessarily conservative for non-sensitive species. Qualitatively considered in our effects analysis below is that beaked whales and harbor porpoise are more acoustically sensitive than other cetacean species, and thus are more likely to demonstrate overt changes in behavior when exposed to such sources. Further, in absence of very sophisticated acoustic modeling, our propagation rates are also conservative. Therefore, the distance to the 160 dB threshold is likely much closer to the source than calculated. In summary, the PIFSC’s proposed activity only includes the use of intermittent sources (scientific sonar). Therefore, the 160 dB threshold is applicable when quantitatively estimating take by behavioral harassment incidental to PIFSC VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 scientific sonar for all marine mammal species. Level A harassment for non-explosive sources—NMFS’ Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or nonimpulsive). However, as described in greater detail in the Potential Effects section, given the highly directional, e.g., narrow beam widths, NMFS does not anticipate animals would be exposed to noise levels resulting in PTS. Therefore, the Level A criteria do not apply here and are not discussed further; NMFS is proposing take by Level B harassment only. Level B harassment—The operating frequencies of active acoustic systems used by the PIFSC range from 30–200 kHz (see Table 1). These frequencies are within the very upper hearing range limits of baleen whales (7 Hz to 35 kHz). The Simrad EM300 operates at a frequency of 30 kHz and the Simrad EK60 operates at 30–200 kHz. Baleen whales may be able to detect sound from the Simrad EM300 and the Simrad EK60 when it operates at the lower frequency. However, the beam pattern is extremely narrow (1 degree) at that frequency. The ADCP Ocean Surveyor operates at 75 kHz, which is outside of baleen whale hearing capabilities. Therefore, we would not expect any exposures to these signals to result in behavioral harassment in baleen whales. The assessment paradigm for active acoustic sources used in PIFSC fisheries research is relatively straightforward and has a number of key simple and conservative assumptions. NMFS’ current acoustic guidance requires in most cases that we assume Level B harassment occurs when a marine mammal receives an acoustic signal at or above a simple step-function threshold. For use of these active acoustic systems used during PIFSC research, NMFS uses the threshold is 160 dB re 1 mPa (rms) as the best available science indicates the temporal characteristics of a source are most influential in determining behavioral impacts (Gomez et al., 2016), and it is NMFS long standing practice to apply the 160 dB threshold to intermittent sources. Estimating the number of exposures at the specified received level requires several determinations, each of which is described sequentially below: PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 15327 (1) A detailed characterization of the acoustic characteristics of the effective sound source or sources in operation; (2) The operational areas exposed to levels at or above those associated with Level B harassment when these sources are in operation; (3) A method for quantifying the resulting sound fields around these sources; and (4) An estimate of the average density for marine mammal species in each area of operation. Quantifying the spatial and temporal dimension of the sound exposure footprint (or ‘‘swath width’’) of the active acoustic devices in operation on moving vessels and their relationship to the average density of marine mammals enables a quantitative estimate of the number of individuals for which sound levels exceed the relevant threshold for each area. The number of potential incidents of Level B harassment is ultimately estimated as the product of the volume of water ensonified at 160 dB rms or higher and the volumetric density of animals determined from simple assumptions about their vertical stratification in the water column. Specifically, reasonable assumptions based on what is known about diving behavior across different marine mammal species were made to segregate those that predominately remain in the upper 200 m of the water column versus those that regularly dive deeper during foraging and transit. Methods for estimating each of these calculations are described in greater detail in the following sections, along with the simplifying assumptions made, and followed by the take estimates. Sound source characteristics—An initial characterization of the general source parameters for the primary active acoustic sources operated by the PIFSC was conducted, enabling a full assessment of all sound sources used by the PIFSC and delineation of Category 1 and Category 2 sources, the latter of which were carried forward for analysis here. This auditing of the active acoustic sources also enabled a determination of the predominant sources that, when operated, would have sound footprints exceeding those from any other simultaneously used sources. These sources were effectively those used directly in acoustic propagation modeling to estimate the zones within which the 160 dB rms received level would occur. Many of these sources can be operated in different modes and with different output parameters. In modeling their potential impact areas, those features among those given previously in Table 2 (e.g., lowest operating frequency) that E:\FR\FM\22MRP2.SGM 22MRP2 15328 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules would lead to the most precautionary estimate of maximum received level ranges (i.e., largest ensonified area) were used. The effective beam patterns took into account the normal modes in which these sources are typically operated. While these signals are brief and intermittent, a conservative assumption was taken in ignoring the temporal pattern of transmitted pulses in calculating Level B harassment events. Operating characteristics of each of the predominant sound sources were used in the calculation of effective linekilometers and area of exposure for each source in each survey. TABLE 8—EFFECTIVE EXPOSURE AREAS FOR PREDOMINANT ACOUSTIC SOURCES ACROSS TWO DEPTH STRATA Effective exposure area: Sea surface to 200 m depth (km2) Active acoustic system Simrad EK60 .................................................................................................................................... Simrad EM300 ................................................................................................................................. ADCP Ocean Surveyor .................................................................................................................... a Greater 0.0413 3.7661 0.0187 than 200 m depth. Calculating effective line-kilometers— As described below, based on the operating parameters for each source type, an estimated volume of water ensonified at or above the 160 dB rms threshold was calculated. In all cases where multiple sources are operated simultaneously, the one with the largest estimated acoustic footprint was considered to be the effective source. Two depth zones were defined for each of the four research areas: 0–200 m and > 200 m. Effective line distance and volume ensonified was calculated for each depth strata (0–200 m and > 200 m), where appropriate. In some cases, this resulted in different sources being predominant in each depth stratum for all line km (i.e., the total linear distance traveled during acoustic survey operations) when multiple sources were in operation. This was accounted for in estimating overall exposures for species that utilize both depth strata (deep divers). For each ecosystem area, the total number of line km that would be surveyed was determined, as was the relative percentage of surveyed line km associated with each source. The total line-kilometers for each survey, the dominant source, the effective percentages associated with each depth, and the effective total volume ensonified are given below (Table 7). jbell on DSKJLSW7X2PROD with PROPOSALS2 0.0082 0.112 0.0086 Effective exposure area: Sea surface to depth at which sound is attenuated to 160 dB SPL (km2) a VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 Calculating volume of water ensonified—The cross-sectional area of water ensonified to a 160 dB rms received level was calculated using a simple spherical spreading model of sound propagation loss (20 log R) such that there would be 60 dB of attenuation over 1000 m. Spherical spreading is a reasonable assumption even in relatively shallow waters since, taking into account the beam angle, the reflected energy from the seafloor will be much weaker than the direct source and the volume influenced by the reflected acoustic energy would be much smaller over the relatively short ranges involved. We also accounted for the frequency-dependent absorption coefficient and beam pattern of these sound sources, which is generally highly directional. The lowest frequency was used for systems that are operated over a range of frequencies. The vertical extent of this area is calculated for two depth strata. These results, shown in Table 9, were applied differentially based on the typical vertical stratification of marine mammals (see Table 10). Following the determination of effective sound exposure area for transmissions considered in two dimensions, the next step was to determine the effective volume of water PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 ensonified at or above 160 dB rms for the entirety of each survey. For each of the three predominant sound sources, the volume of water ensonified is estimated as the athwartship crosssectional area (in square kilometers) of sound at or above 160 dB rms (as illustrated in Figure 6.1 of PIFSC’s application) multiplied by the total distance traveled by the ship. Where different sources operating simultaneously would be predominant in each different depth strata, the resulting cross-sectional area calculated took this into account. Specifically, for shallow-diving species this crosssectional area was determined for whichever was predominant in the shallow stratum, whereas for deeperdiving species this area was calculated from the combined effects of the predominant source in the shallow stratum and the (sometimes different) source predominating in the deep stratum. This creates an effective total volume characterizing the area ensonified when each predominant source is operated and accounts for the fact that deeper-diving species may encounter a complex sound field in different portions of the water column. E:\FR\FM\22MRP2.SGM 22MRP2 VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00033 3000 3000 5500 Oscar Elton Sette Insular Fish Abundance Estimation Hi‘ialakai Deep Coral and Sponge Research ............... 18000 Sfmt 4702 8600 2000 2000 5500 2000 Oscar Elton Sette Insular Fish Abundance Estimation Hi‘ialakai Deep Coral and Sponge ................................ Oscar Elton Sette Sampling Pelagic Stages of Insular Fish. 18000 2500 Hi‘ialakai Coral Reef Benthic Mapping .......................... Hi‘ialakai RAMP ............................................................. Hi‘ialakai or Oscar Elton Sette RAMP Gear & Instrument Development & Field Trials. 100 0 0 100 100 0 100 0 100 0 100 100 75 25 Simrad EK60. ADCP Ocean Surveyor. Simrad EM 300. EK60 ........ ADCP Ocean Surveyor. Simrad EM 300. EK60 ........ 0 100 0 100 100 75 25 0 5500 0 2000 8600 13500 4500 2500 0 0 40000 4000 0 5500 0 3000 0 5000 17000 27000 9000 Line km/dominant source (0–200m) Mariana Archipelago Research Area ADCP Ocean Surveyor. 22MRP2 40000 40000 2500 Simrad EM 300. ADCP Ocean Surveyor. Simrad EM 300. EK60 ........ ADCP Ocean Surveyor. EK60 ........ ADCP Ocean Surveyor. Simrad EM300. EK60 ........ E:\FR\FM\22MRP2.SGM Oscar Elton Sette Cetacean Ecology Assessment ....... % Time source dominant (0–200m) Hawaiian Archipelago Research Area Dominant source ADCP Ocean Surveyor. EK60 ........ ADCP Ocean Surveyor. EK60 ........ Fmt 4701 4000 4000 5000 5000 Oscar Elton Sette Kona IEA .......................................... Oscar Elton Sette Sampling Pelagic Stages of Insular Fish Species. 17000 36000 36000 Average line kms per vessel Hi‘ialakai Coral Reef Benthic Mapping .......................... Hi‘ialakai RAMP ............................................................. Vessel—survey 0 611.6 0 17.2 956.3 116.1 500.4 21.5 0 0 344.0 34.4 0 611.6 0 28.5 0 43.0 1890.4 232.2 1000.8 Volume ensonified at 0–200 m Depth (km3) 75 25 100 100 100 0 100 75 25 0 100 100 0 0 100 100 100 0 100 0 100 % Time source dominant (>200m) 2000 5500 2000 0 8600 13500 4500 0 2500 40000 0 0 4000 5500 3000 0 5000 0 17000 27000 9000 Line km/dominant source (>200m) TABLE 9—FIVE-YEAR TOTAL LINE KILOMETERS FOR EACH VESSEL AND ITS PREDOMINANT SOURCE WITHIN TWO DEPTH STRATA jbell on DSKJLSW7X2PROD with PROPOSALS2 66.2 20102.0 66.2 0 31432.1 136.4 16447.1 0 82.8 1324.0 0 0 132.4 20102.0 99.3 0 165.5 0 62133.3 272.1 32894.1 Volume ensonified at >200 m Depth (km3) Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules 15329 VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\22MRP2.SGM 22MRP2 0 100 0 100 100 % Time source dominant (0–200m) ADCP Ocean Surveyor. EK60 ........ ADCP Ocean Surveyor. Simrad EK60. ADCP Ocean Surveyor. Simrad EM 300. EK60 ........ ADCP Ocean Surveyor. Simrad EM 300. EK60 ........ 0 100 100 0 100 0 100 100 75 25 0 20000 2000 8600 7000 7000 2000 Oscar Elton Sette Oceanographic ................................. Oscar Elton Sette Insular Fish Abundance Estimation 18000 18000 Simrad EK60. ADCP Ocean Surveyor. Simrad EM 300. EK60 ........ ADCP Ocean Surveyor. EK60 ........ 0 0 100 100 75 25 0 500 0 2000 8600 13500 4500 0 3000 0 20000 2000 Line km/dominant source (0–200m) American Samoa Research Area ADCP Ocean Surveyor. EK60 ........ ADCP Ocean Surveyor. EK60 ........ ADCP Ocean Surveyor. Dominant source 0 0 7000 8600 13500 4500 Western and Central Pacific Research Area 20000 20000 2000 2000 500 2000 ........................ 8600 18000 18000 3000 3000 20000 20000 2000 Average line kms per vessel Hi‘ialakai Coral Reef Benthic Mapping .......................... Hi‘ialakai RAMP ............................................................. Oscar Elton Sette Cetacean Ecology Assessment ....... Oscar Elton Sette Sampling Pelagic Stage of Insular Fish. Hi‘ialakai Deep Coral and Sponge Research ............... NOAA ship Oscar Elton Sette Insular Fish Abundance Estimation. Hi‘ialakai Coral Reef Benthic Mapping .......................... NOAA ship Hi‘ialakai RAMP .......................................... Hi‘ialakai Mariana Baseline Surveys ............................. Oscar Elton Sette Cetacean Ecology Assessment ....... Vessel—survey 0 0 60.2 956.3 116.1 500.4 0 172.0 17.2 0 55.6 0 17.2 956.3 116.1 500.4 0 25.8 0 172.0 17.2 Volume ensonified at 0–200 m Depth (km3) 0 100 100 0 100 75 25 100 0 0 100 100 100 0 100 75 25 100 0 100 0 % Time source dominant (>200m) 2000 7000 0 8600 13500 4500 20000 0 0 2000 500 2000 0 8600 13500 4500 3000 0 20000 0 0 Line km/dominant source (>200m) 0 66.2 231.7 0 31432.1 136.4 16447.1 662.0 0 0 66.2 1827.5 66.2 0 31432.1 136.4 16447.1 99.3 0 662.0 0 Volume ensonified at >200 m Depth (km3) TABLE 9—FIVE-YEAR TOTAL LINE KILOMETERS FOR EACH VESSEL AND ITS PREDOMINANT SOURCE WITHIN TWO DEPTH STRATA—Continued jbell on DSKJLSW7X2PROD with PROPOSALS2 15330 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules ADCP Ocean Surveyor. EK60 ........ ADCP Ocean Surveyor. VerDate Sep<11>2014 Oscar Elton Sette Cetacean Ecology Assessment ....... 20000 20000 2000 Oscar Elton Sette Sampling Pelagic Stages of Insular Fish. 2000 500 ADCP Ocean Surveyor. Simrad EM 300. EK60 ........ 2000 Hi‘ialakai Deep Coral and Sponge ................................ jbell on DSKJLSW7X2PROD with PROPOSALS2 0 100 100 0 100 100 0 20000 2000 0 500 2000 0 172.0 17.2 0 55.6 17.2 100 0 0 100 100 0 20000 0 0 2000 500 0 662.0 0 0 66.2 1827.5 0 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\22MRP2.SGM 22MRP2 15331 15332 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules Marine Mammal Densities—One of the primary limitations to traditional estimates of behavioral harassment from acoustic exposure is the assumption that animals are uniformly distributed in time and space across very large geographical areas, such as those being considered here. There is ample evidence that this is in fact not the case, and marine species are highly heterogeneous in terms of their spatial distribution, largely as a result of species-typical utilization of heterogeneous ecosystem features. Some more sophisticated modeling efforts have attempted to include speciestypical behavioral patterns and diving parameters in movement models that more adequately assess the spatial and temporal aspects of distribution and thus exposure to sound. While simulated movement models were not used to mimic individual diving or aggregation parameters in the determination of animal density in this estimation, the vertical stratification of marine mammals based on known or reasonably assumed diving behavior was integrated into the density estimates used. First, typical two-dimensional marine mammal density estimates (animals/ km2) were obtained from various sources for each ecosystem area. These were estimated from marine mammal Stock Assessment Reports and other sources (please see Table 6–5 of PIFSC’s application). There are a number of caveats associated with these estimates: (1) They are often calculated using visual sighting data collected during one season rather than throughout the year. differences between known generally surface-associated and typically deepdiving marine mammals (e.g., Reynolds and Rommel, 1999; Perrin et al., 2009). Animals in the shallow-diving stratum were assumed, on the basis of empirical measurements of diving with monitoring tags and reasonable assumptions of behavior based on other indicators, to spend a large majority of their lives (i.e., greater than 75 percent) at depths shallower than 200 m. Their volumetric density and thus exposure to sound is therefore limited by this depth boundary. Species in the deeper diving stratum were reasonably estimated to dive deeper than 200 m and spend 25 percent or more of their lives at these greater depths. Their volumetric density and thus potential exposure to sounds up to the 160 dB rms level is extended from the surface to the depth at which this received level condition occurs. Their volumetric density and thus potential exposure to sound at or above the 160 dB rms threshold is extended from the surface to 500 m, (i.e., nominal maximum water depth in regions where these surveys occur). The volumetric densities are estimates of the three-dimensional distribution of animals in their typical depth strata. For shallow-diving species the volumetric density is the area density divided by 0.2 km (i.e., 200 m). For deeper diving species, the volumetric density is the area density divided by a nominal value of 0.5 km (i.e., 500 m). The twodimensional and resulting threedimensional (volumetric) densities for each species in each ecosystem area are shown in Table 10. The time of year when data were collected and from which densities were estimated may not always overlap with the timing of PIFSC fisheries surveys (detailed previously in ‘‘Detailed Description of Activities’’). (2) The densities used for purposes of estimating acoustic exposures do not take into account the patchy distributions of marine mammals in an ecosystem, at least on the moderate to fine scales over which they are known to occur. Instead, animals are considered evenly distributed throughout the assessed area, and seasonal movement patterns are not taken into account. (3) Marine mammal density information is in many cases based on limited historical surveys and may be incomplete or absent for many regions of the vast geographic area addressed by PIFSC fisheries research. As a result density estimates for some species/ stocks in some regions are based on the best available data for other regions and/ or similar stocks. In addition, and to account for at least some coarse differences in marine mammal diving behavior and the effect this has on their likely exposure to these kinds of often highly directional sound sources, a volumetric density of marine mammals of each species was determined. This value is estimated as the abundance averaged over the twodimensional geographic area of the surveys and the vertical range of typical habitat for the population. Habitat ranges were categorized in two generalized depth strata (0–200 m and greater than 200 m) based on gross TABLE 10—VOLUMETRIC DENSITIES CALCULATED FOR EACH SPECIES IN THE PIFSC RESEARCH AREAS Typical dive depth strata Species (common name) 0–200 m I >200 m Area density (#/km2) Volumetric density (#/km3) jbell on DSKJLSW7X2PROD with PROPOSALS2 Hawaiian Archipelago Research Area Pantropical spotted dolphin ..................................................................................... Striped dolphin ......................................................................................................... Spinner dolphin- all insular ...................................................................................... Rough-toothed dolphin ............................................................................................ Bottlenose dolphin ................................................................................................... Risso’s dolphin ......................................................................................................... Fraser’s dolphin ....................................................................................................... Melon-headed whale ............................................................................................... Melon-headed whale- Kohala stock ........................................................................ Pygmy killer whale ................................................................................................... False killer whale- pelagic ....................................................................................... False killer whale- MHI insular ................................................................................ False killer whale- NWHI ......................................................................................... Short-finned pilot whale ........................................................................................... Killer whale .............................................................................................................. Sperm whale ............................................................................................................ Pygmy sperm whale ................................................................................................ Dwarf sperm whale .................................................................................................. Blainville’s beaked whale ......................................................................................... Cuvier’s beaked whale ............................................................................................ VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 X X X X X .................... X X X X .................... .................... .................... .................... X .................... .................... .................... .................... .................... .................... .................... .................... .................... .................... X .................... .................... .................... .................... X X X X .................... X X X X X E:\FR\FM\22MRP2.SGM 22MRP2 0.02332 0.025 0.009985 0.02963 0.00899 0.00474 0.02104 0.00354 0.001415 0.00435 0.0006 0.0009 0.0014 0.00797 0.00006 0.00186 0.00291 0.00714 0.00086 0.0003 0.1166 0.125 0.0499255 0.14815 0.04495 0.00948 0.1052 0.0177 0.0070734 0.02175 0.0012 0.0018 0.0028 0.01594 0.0003 0.00372 0.00582 0.01428 0.00172 0.0006 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules 15333 TABLE 10—VOLUMETRIC DENSITIES CALCULATED FOR EACH SPECIES IN THE PIFSC RESEARCH AREAS—Continued Typical dive depth strata Species (common name) Longman’s beaked whale ........................................................................................ Unidentified Mesoplodon ......................................................................................... Unidentified beaked whale ...................................................................................... Hawaiian monk seal ................................................................................................ Area density (#/km2) Volumetric density (#/km3) 0–200 m >200 m .................... .................... .................... X X X X .................... 0.00311 0.00189 0.00117 0.003741 0.00622 0.00378 0.00234 0.0187042 .................... .................... .................... .................... .................... X1 .................... .................... .................... X1 X .................... X X X X X X 0.0226 0.00616 0.009985 0.00314 0.00029 0.00021 0.02104 0.00428 0.00014 0.00111 0.00159 0.00006 0.00123 0.00291 0.00714 0.00086 0.0003 0.00117 0.113 0.0308 0.0499255 0.0157 0.00145 0.00042 0.1052 0.0214 0.0007 0.00222 0.00318 0.0003 0.00246 0.00582 0.01428 0.00172 0.0006 0.00234 .................... .................... .................... .................... .................... X .................... X X X X 0.02332 0.00475 0.02963 0.00899 0.00090 0.00797 0.00006 0.00186 0.00714 0.00030 0.00117 0.1166 0.02375 0.14815 0.04495 0.0045 0.01594 0.0003 0.00372 0.01428 0.0006 0.00234 .................... .................... .................... .................... .................... X1 .................... .................... .................... X1 X .................... X X X X X X X X 0.02332 0.025 0.011095 0.02963 0.00899 0.00474 0.02104 0.00354 0.00435 0.00102 0.00797 0.00006 0.00186 0.00291 0.00714 0.00086 0.0003 0.0003 0.00311 0.00117 0.1166 0.125 0.055475 0.14815 0.04495 0.00948 0.1052 0.0177 0.02175 0.00204 0.01594 0.0003 0.00372 0.00582 0.01428 0.00172 0.0006 0.0006 0.00622 0.00234 Mariana Archipelago Research Area Pantropical spotted dolphin ..................................................................................... Striped dolphin ......................................................................................................... Spinner dolphin ........................................................................................................ Rough-toothed dolphin ............................................................................................ Bottlenose dolphin ................................................................................................... Risso’s dolphin ......................................................................................................... Fraser’s dolphin ....................................................................................................... Melon-headed whale ............................................................................................... Pygmy killer whale ................................................................................................... False killer whale- pelagic ....................................................................................... Short-finned pilot whale ........................................................................................... Killer whale .............................................................................................................. Sperm whale ............................................................................................................ Pygmy sperm whale ................................................................................................ Dwarf sperm whale .................................................................................................. Blainville’s beaked whale ......................................................................................... Cuvier’s beaked whale ............................................................................................ Unidentified beaked whale ...................................................................................... X X X X X .................... X X X .................... .................... X .................... .................... .................... .................... .................... .................... American Samoa Research Area Pantropical spotted dolphin ..................................................................................... Spinner dolphin ........................................................................................................ Rough-toothed dolphin ............................................................................................ Bottlenose dolphin ................................................................................................... False killer whale ..................................................................................................... Short-finned pilot whale ........................................................................................... Killer whale .............................................................................................................. Sperm whale ............................................................................................................ Dwarf sperm whale .................................................................................................. Cuvier’s beaked whale ............................................................................................ Unidentified beaked whale ...................................................................................... X X X X X .................... X .................... .................... .................... .................... jbell on DSKJLSW7X2PROD with PROPOSALS2 Western and Central Pacific Research Area Pantropical spotted dolphin ..................................................................................... Striped dolphin ......................................................................................................... Spinner dolphin ........................................................................................................ Rough-toothed dolphin ............................................................................................ Bottlenose dolphin ................................................................................................... Risso’s dolphin ......................................................................................................... Fraser’s dolphin ....................................................................................................... Melon-headed whale ............................................................................................... Pygmy killer whale ................................................................................................... False killer whale ..................................................................................................... Short-finned pilot whale ........................................................................................... Killer whale .............................................................................................................. Sperm whale ............................................................................................................ Pygmy sperm whale ................................................................................................ Dwarf sperm whale .................................................................................................. Blainville’s beaked whale ......................................................................................... Cuvier’s beaked whale ............................................................................................ Deraniyagala’s beaked whale .................................................................................. Longman’s beaked whale ........................................................................................ Unidentified beaked whale ...................................................................................... X X X X X .................... X X X .................... .................... X .................... .................... .................... .................... .................... .................... .................... .................... 1 NMFS has classified these species as deep diving in the PIFSC research areas, which is different from their classification as shallow-diving species by the other NMFS Fisheries Science Centers. These classifications of deep-diving are based on unpublished data from telemetry studies including depth of dive and stomach contents of deep-diving prey items (E. Oleson, personal communication, November 10, 2015). Using Area of Ensonification and Volumetric Density to Estimate VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 Exposures—Estimates of potential incidents of Level B harassment (i.e., PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 potential exposure to levels of sound at or exceeding the 160 dB rms threshold) E:\FR\FM\22MRP2.SGM 22MRP2 15334 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules are then calculated by using (1) the combined results from output characteristics of each source and identification of the predominant sources in terms of acoustic output; (2) their relative annual usage patterns for each operational area; (3) a sourcespecific determination made of the area of water associated with received sounds at the extent of a depth boundary; and (4) determination of a biologically-relevant volumetric density of marine mammal species in each area. Estimates of Level B harassment by acoustic sources are the product of the volume of water ensonified at 160 dB rms or higher for the predominant sound source for each relevant survey (4) Estimated exposures to sound ≥ 160 dB rms = 0.11660 pantropical spotted dolphin/km3 * (0.0086 km2 * 81,500 km) = 81.72 (rounded up) = 82 estimated pantropical spotted dolphin exposures to SPLs ≥ 160 dB rms resulting from use of the ADCP Ocean Surveyor in the HARA Totals in Tables 11–14 represent sums across all relevant surveys and sources rounded up to the nearest whole number. Note that take of baleen whales is not predicted due to the lack of overlap in their hearing range with the operating frequencies of PIFSC acoustic sources. and the volumetric density of animals for each species. Source- and stratumspecific exposure estimates are the product of these ensonified volumes and the species-specific volumetric densities (Tables 8, 9 and 10). The general take estimate equation for each source in each depth statrum is density * (ensonified volume * line kms). To illustrate, we use the ADCP Ocean Surveyor in the HARA and the pantropical spotted dolphin as an example. (1) ADCP Ocean Surveyor ensonified volume (0–200 m) = 0.0086 km2 (2) Total Line kms = 81,500 km (3) Pantropical spotted dolphin density (0–200 m) = 0.11660 dolphins/ km3 TABLE 11—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC FIVE-YEAR ESTIMATES OF LEVEL B HARASSMENT IN THE HARA Volumetric density (#/km3) Species/stocks Estimated Level B harassment (numbers of animals) in 0–200m depth stratum EK60 Pantropical spotted dolphin ....................... Striped dolphin ........................................... Spinner dolphin- all insular ........................ Rough-toothed dolphin ............................... Bottlenose dolphin (all stocks) ................... Risso’s dolphin ........................................... Fraser’s dolphin ......................................... Melon-headed whale .................................. Melon-headed whale- Kohala stock .......... Pygmy killer whale ..................................... False killer whale- pelagic ......................... False killer whale- MHI insular .................. False killer whale- NWHI ........................... Short-finned pilot whale ............................. Killer whale ................................................. Sperm whale .............................................. Pygmy sperm whale .................................. Dwarf sperm whale .................................... Blainville’s beaked whale ........................... Cuvier’s beaked whale ............................... Longman’s beaked whale .......................... Unidentified Mesoplodon ........................... Unidentified beaked whale ......................... Hawaiian monk seal ................................... a Total 0.11660 0.12500 0.04993 0.14815 0.04495 0.00948 0.10520 0.01770 0.00707 0.02175 0.00120 0.00180 0.00280 0.01594 0.00030 0.00372 0.00582 0.01428 0.00172 0.00060 0.00622 0.00378 0.00234 0.01870 EM300 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Estimated Level B harassment in >200m depth stratum ADCP 408 438 175 519 157 33 368 62 25 76 4 6 10 56 1 13 20 50 6 2 22 13 8 66 EK60 82 88 35 104 32 7 74 12 5 15 1 1 2 11 0 3 4 10 1 0 4 3 2 13 Total take a EM300 0 0 0 0 0 17 0 0 0 0 2 3 5 29 0 7 10 26 3 1 11 7 4 0 0 0 0 0 0 1091 0 0 0 0 138 207 322 1835 0 428 670 1644 198 69 716 435 269 0 490 525 210 623 189 1148 442 74 30 91 145 218 339 1931 b6 451 705 1730 208 73 753 458 283 79 take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes. calculated take over five years is less than typical group size, proposed take has been increased to mean group size (U.S. Navy b Where 2017). TABLE 12—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC FIVE-YEAR ESTIMATES OF LEVEL B HARASSMENT IN THE MARA jbell on DSKJLSW7X2PROD with PROPOSALS2 Species Volumetric density (#/km3) Estimated Level B harassment (numbers of animals) in 0–200m depth stratum EK60 Pantropical spotted dolphin Striped dolphin ................... Spinner dolphin .................. Rough-toothed dolphin ....... Bottlenose dolphin ............. Risso’s dolphin ................... Fraser’s dolphin ................. VerDate Sep<11>2014 20:06 Mar 19, 2021 0.11300 0.03080 0.04993 0.01570 0.00145 0.00042 0.10520 Jkt 253001 EM300 0 0 0 0 0 0 0 PO 00000 Frm 00038 Total take a EK60 ADCP 234 64 103 32 3 1 218 Fmt 4701 Estimated Level B harassment in >200m depth stratum 37 10 17 5 0 0 35 Sfmt 4702 EM300 0 0 0 0 0 0 0 E:\FR\FM\22MRP2.SGM ADCP 0 0 0 0 0 29 0 22MRP2 0 0 0 0 0 0 0 271 74 120 38 b6 30 b 283 15335 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules TABLE 12—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC FIVE-YEAR ESTIMATES OF LEVEL B HARASSMENT IN THE MARA—Continued Species Volumetric density (#/km3) Estimated Level B harassment (numbers of animals) in 0–200m depth stratum EK60 Melon-headed whale .......... Pygmy killer whale ............. False killer whale (pelagic) Short-finned pilot whale ..... Killer whale ......................... Sperm whale ...................... Pygmy sperm whale .......... Dwarf sperm whale ............ Blainville’s beaked whale ... Cuvier’s beaked whale ....... Unidentified beaked whale a Total 0.02140 0.00070 0.00222 0.00318 0.00030 0.00246 0.00582 0.01428 0.00172 0.00060 0.00234 EM300 0 0 0 0 0 0 0 0 0 0 0 Estimated Level B harassment in >200m depth stratum Total take a EK60 ADCP 44 1 5 7 1 5 12 30 4 1 5 7 0 1 1 0 1 2 5 1 0 1 EM300 0 0 2 3 0 2 5 13 2 1 2 ADCP 0 0 151 216 0 167 396 971 117 41 159 0 0 0 0 0 0 1 2 0 0 0 b 73 b7 159 227 b4 175 416 1020 123 43 167 take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes. calculated take over five years is less than typical group size, proposed take has been increased to mean group size (U.S. Navy b Where 2017). TABLE 13—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC FIVE-YEAR ESTIMATES OF LEVEL B HARASSMENT IN THE ASARA Species Volumetric density (#/km3) Estimated Level B harassment (numbers of animals) in 0–200m depth stratum EK60 Pantropical spotted dolphin Spinner dolphin .................. Rough-toothed dolphin ....... Bottlenose dolphin ............. False killer whale ............... Short-finned pilot whale ..... Killer whale ......................... Sperm whale ...................... Dwarf sperm whale ............ Cuvier’s beaked whale ....... Unidentified beaked whale a Total 0.11660 0.02375 0.14815 0.04495 0.00450 0.01594 0.00030 0.00372 0.01428 0.00060 0.00234 EM300 0 0 0 0 0 0 0 0 0 0 0 Estimated Level B harassment in >200m depth stratum Total take a EK60 ADCP 176 36 224 68 7 24 0 6 22 1 4 38 8 48 14 1 5 0 1 5 0 1 EM300 0 0 0 0 0 13 0 3 11 0 2 ADCP 0 0 0 0 0 792 0 185 710 30 116 0 0 0 0 0 2 0 1 2 0 0 214 44 272 82 b 10 836 b4 195 749 31 123 take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes. calculated take over five years is less than typical group size, proposed take has been increased to mean group size (U.S. Navy b Where 2017). TABLE 14—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC FIVE-YEAR ESTIMATES OF LEVEL B HARASSMENT IN THE WCPRA Species Volumetric density (#/km3) Estimated Level B harassment (numbers of animals) in 0–200m depth stratum jbell on DSKJLSW7X2PROD with PROPOSALS2 EK60 Pantropical spotted dolphin Striped dolphin ................... Spinner dolphin .................. Rough-toothed dolphin ....... Bottlenose dolphin ............. Risso’s dolphin ................... Fraser’s dolphin ................. Melon-headed whale .......... Pygmy killer whale ............. False killer whale ............... Short-finned pilot whale ..... Killer whale ......................... Sperm whale ...................... Pygmy sperm whale .......... Dwarf sperm whale ............ Blainville’s beaked whale ... Cuvier’s beaked whale ....... VerDate Sep<11>2014 20:06 Mar 19, 2021 0.11660 0.12500 0.05548 0.14815 0.04495 0.00948 0.10520 0.01770 0.02175 0.00204 0.01594 0.00030 0.00372 0.00582 0.01428 0.00172 0.00060 Jkt 253001 EM300 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 PO 00000 Frm 00039 Total take a EK60 ADCP 176 189 84 224 68 14 159 27 33 3 24 0 6 9 22 3 1 Fmt 4701 Estimated Level B harassment in >200m depth stratum 45 48 21 57 17 4 40 7 8 1 6 0 1 2 5 1 0 Sfmt 4702 EM300 0 0 0 0 0 10 0 0 0 2 16 0 4 6 15 2 1 E:\FR\FM\22MRP2.SGM 0 0 0 0 0 471 0 0 0 101 792 0 185 289 710 85 30 22MRP2 ADCP 0 0 0 0 0 1 0 0 0 0 2 0 1 1 2 0 0 221 237 105 281 85 500 b 283 b 73 41 107 841 b4 197 307 754 91 32 15336 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules TABLE 14—DENSITIES AND ESTIMATED SOURCE-, STRATUM-, AND SPECIES-SPECIFIC FIVE-YEAR ESTIMATES OF LEVEL B HARASSMENT IN THE WCPRA—Continued Estimated Level B harassment (numbers of animals) in 0–200m depth stratum Volumetric density (#/km3) Species EK60 Deraniyagala’s beaked whale .............................. Longman’s beaked whale .. Unidentified beaked whale a Total 0.00060 0.00622 0.00234 EM300 0 0 0 Estimated Level B harassment in >200m depth stratum Total take a EK60 ADCP 1 9 4 0 2 1 EM300 1 6 2 ADCP 30 309 116 0 1 0 32 328 123 take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes. calculated take over five years is less than typical group size, proposed take has been increased to mean group size (U.S. Navy b Where 2018). TABLE 15—TOTAL PROPOSED ANNUAL AND FIVE-YEAR TAKES BY LEVEL B HARASSMENT FROM ACOUSTIC DISTURBANCE All areas 5-year total take by Level B harassment Species Blainville’s beaked whale ................................................................................................................. Bottlenose dolphin ........................................................................................................................... Cuvier’s beaked whale .................................................................................................................... Deraniyagala’s beaked whale .......................................................................................................... Dwarf sperm whale .......................................................................................................................... False killer whale ............................................................................................................................. Fraser’s dolphin ............................................................................................................................... Hawaiian monk seal ........................................................................................................................ Killer whale ...................................................................................................................................... Longman’s beaked whale ................................................................................................................ Melon-headed whale ....................................................................................................................... Pantropical spotted dolphin ............................................................................................................. Pygmy killer whale ........................................................................................................................... Pygmy sperm whale ........................................................................................................................ Risso’s dolphin ................................................................................................................................. Rough-toothed dolphin .................................................................................................................... Short-finned pilot whale ................................................................................................................... Sperm whale .................................................................................................................................... Spinner dolphin ................................................................................................................................ Striped dolphin ................................................................................................................................. Unidentified beaked whale .............................................................................................................. Unidentified Mesoplodon ................................................................................................................. a Average 422 362 179 32 4,253 978 1,008 79 18 1,081 250 1,196 139 1,428 1,678 1,214 3,835 1,018 479 836 696 458 All areas average annual take by Level B harassment a 84 72 36 6 851 196 202 16 4 216 50 239 28 286 336 243 767 204 96 167 139 92 annual take calculated by dividing total five-year take by five and rounding to nearest whole number. Estimated Take Due to Physical Disturbance Take due to physical disturbance could potentially happen, as it is likely that some Hawaiian monk seals will move or flush from known haulouts into the water in response to the presence or sound of PIFSC vessels or researchers. In the MHI and the NWHI, there are numerous sites used by the endangered Hawaiian monk seal to haulout (sandy beaches, rocky outcroppings, exposed reefs) where the physical presence and sounds of researchers walking by or passing nearby in small boats may disturb animals present. Disturbance to Hawaiian monk seals would occur in the HARA only. Physical disturbance would result in no greater than Level B harassment. Behavioral responses may be considered according to the scale shown in Table 16 and based on the method developed by Mortenson (1996). We consider responses corresponding to Levels 2–3 to constitute Level B harassment. jbell on DSKJLSW7X2PROD with PROPOSALS2 TABLE 16—LEVELS OF PINNIPED BEHAVIORAL DISTURBANCE Level Type of response Definition 1 ...................... Alert .................. 2 * .................... Movement ......... 3 * .................... Flush ................. 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. 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. All retreats (flushes) to the water. * Only observations of disturbance Levels 2 and 3 are recorded as takes. VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules The 2018 SAR for Hawaiian monk seal estimates the total abundance in the Hawaiian archipelago is 1,415 seals (Caretta et al., 2019). Not all of these seals haul out at the same time or at the same places, and therefore it is difficult to predict if any monk seals will be present at any particular research location at any point in time. Therefore, the best way to estimate the amount of Level B harassment would be to approximate the number of seals hauled out at any point in time across the HARA and the probability that a researcher would be close enough to actually disturb the seal. Parrish et al. (2002) estimated approximately one-third of the total population may be hauled out at any point in time. Assuming that all seals have an equal probability of hauling out anywhere in the archipelago, one-third of 1,351 is approximately 450 individual monk seals. Given that the two surveys with the highest probability of disturbing monk seals (i.e., RAMP and Marine Debris Research and Removal) systematically circumnavigate all the islands and atolls when they are conducted, we could estimate the annual maximum number of Level B harassment takes as 900 during the years when these are conducted. Over the course of five years, this would be approximately 4,500 potential disturbances if all the surveys took place every year at every location across the HARA. However, RAMP surveys occur in the HARA approximately twice every five years and Marine Debris Research and Removal Surveys are rarely funded to a level that would support complete circumnavigation of the HARA each year. In addition, during some RAMP surveys the location of marine debris are identified (and recorded), thus precluding the need for marine debris identification later (only removal). Therefore, the approximately 4,500 potential disturbances over five years could be reduced by two-fifths to approximately 1,800 potential disturbances over five years. Furthermore, not all small boat operations during these surveys are close enough to the shoreline to actually cause a disturbance (e.g., a seal may be hauled out on a beach in a bay but the shallow fringing reef may keep the small boat from getting within half of mile from shore) and the researchers implement avoidance and minimization measures while carrying out the surveys. The approximately 1,800 potential disturbances could realistically be reduced through avoidance or sheer geographical separation by one-half. Therefore, the VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PIFSC has requested, and NMFS is proposing to authorize, 900 Level B disturbances of Hawaiian monk seals due to the physical presence of researchers over the five-year authorization period, or an average of 180 takes by Level B harassment per year. The annual maximum potential exposures (900) could also realistically be reduced by half due to mitigation and geographical separation to a maximum of 450 takes of Hawaiian monk seals by Level B harassment in a year. Proposed Mitigation In order to issue an incidental take authorization under Section 101(a)(5)(A or D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, ‘‘and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking’’ for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and (2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, personnel safety, and practicality of implementation. Mitigation for Marine Mammals and Their Habitat The PIFSC has invested significant time and effort in identifying PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 15337 technologies, practices, and equipment to minimize the impact of the proposed activities on marine mammal species and stocks and their habitat. The mitigation measures discussed here have been determined to be both effective and practicable and, in some cases, have already been implemented by the PIFSC. In addition, the PIFSC is actively conducting research to determine if gear modifications are effective at reducing take from certain types of gear; any potentially effective and practicable gear modification mitigation measures will be discussed as research results are available as part of the adaptive management strategy included in this rule. General Measures Visual Monitoring—Effective monitoring is a key step in implementing mitigation measures and is achieved through regular marine mammal watches. Marine mammal watches are a standard part of conducting PIFSC fisheries research activities, particularly those activities that use gears that are known to or potentially interact with marine mammals. Marine mammal watches and monitoring occur during daylight hours prior to deployment of gear (e.g., trawls, longline gear), and they continue until gear is brought back on board. If marine mammals are sighted in the area and are considered to be at risk of interaction with the research gear, then the sampling station is either moved or canceled or the activity is suspended until the marine mammals are no longer in the area. On smaller vessels, the Chief Scientist (CS) and the vessel operator are typically those looking for marine mammals and other protected species. When marine mammal researchers are on board (distinct from marine mammal observers dedicated to monitoring for potential gear interactions), they will record the estimated species and numbers of animals present and their behavior. If marine mammal researchers are not on board or available, then the CS in cooperation with the vessel operator will monitor for marine mammals and provide training as practical to bridge crew and other crew to observe and record such information. Coordination and Communication— When PIFSC survey effort is conducted aboard NOAA-owned vessels, there are both vessel officers and crew and a scientific party. Vessel officers and crew are not composed of PIFSC staff but are employees of NOAA’s Office of Marine and Aviation Operations (OMAO), which is responsible for the management and operation of NOAA fleet ships and aircraft and is composed E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15338 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules of uniformed officers of the NOAA Commissioned Corps as well as civilians. The ship’s officers and crew provide mission support and assistance to embarked scientists, and the vessel’s Commanding Officer (CO) has ultimate responsibility for vessel and passenger safety and, therefore, decision authority regarding the implementation of mitigation measures. When PIFSC survey effort is conducted aboard cooperative platforms (i.e., non-NOAA vessels), ultimate responsibility and decision authority again rests with nonPIFSC personnel (i.e., vessel’s master or captain). Although the discussion throughout this Rule does not always explicitly reference those with decisionmaking authority from cooperative platforms, all mitigation measures apply with equal force to non-NOAA vessels and personnel as they do to NOAA vessels and personnel. Decision authority includes the implementation of mitigation measures (e.g., whether to stop deployment of trawl gear upon observation of marine mammals). The scientific party involved in any PIFSC survey effort is composed, in part or whole, of PIFSC staff and is led by a CS. Therefore, because the PIFSC—not OMAO or any other entity that may have authority over survey platforms used by PIFSC—is the applicant to whom any incidental take authorization issued under the authority of these proposed regulations would be issued, we require that the PIFSC take all necessary measures to coordinate and communicate in advance of each specific survey with OMAO, or other relevant parties, to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant eventcontingent decision-making processes, are clearly understood and agreed-upon. This may involve description of all required measures when submitting cruise instructions to OMAO or when completing contracts with external entities. PIFSC will coordinate and conduct briefings at the outset of each survey and as necessary between the ship’s crew (CO/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. The CS will be responsible for coordination with the Officer on Deck (OOD; or equivalent on non-NOAA platforms) to ensure that requirements, procedures, and decisionmaking processes are understood and properly implemented. VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 The PIFSC will coordinate with the local Pacific Islands Regional Stranding Coordinator and the NMFS Stranding Coordinator for any unusual protected species behavior and any stranding, beached live/dead, or floating protected species that are encountered during field research activities. If a large whale is alive and entangled in fishing gear, the vessel will immediately call the U.S. Coast Guard at VHF Ch. 16 and/or the appropriate Marine Mammal Health and Stranding Response Network for instructions. All entanglements (live or dead) and vessel strikes must be reported immediately to the NOAA Fisheries Marine Mammal Stranding Hotline at 888–256–9840. Vessel Speed—Vessel speed during active sampling rarely exceeds 5 kt, with typical speeds being 2–4 kt. Transit speeds vary from 6–14 kt but average 10 kt. These low vessel speeds minimize the potential for ship strike (see ‘‘Potential Effects of the Specified Activity on Marine Mammals and Their Habitat’’ for an in-depth discussion of ship strike). In addition, as a standard operating practice, PIFSC maintains a 100-yard distance between research vessels and large whales whenever and wherever it conducts fisheries research activities. At any time during a survey or in transit, if a crew member or designated marine mammal observer standing watch sights marine mammals that may intersect with the vessel course that individual will immediately communicate the presence of marine mammals to the bridge for appropriate course alteration or speed reduction, as possible, to avoid incidental collisions. Other Gears—The PIFSC deploys a wide variety of gear to sample the marine environment during all of their research cruises. Many of these types of gear (e.g., plankton nets, video camera and ROV deployments) are not considered to pose any risk to marine mammals and are therefore not subject to specific mitigation measures. However, at all times when the PIFSC is conducting survey operations at sea, the OOD and/or CS and crew will monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment. Handling Procedures—Handling procedures are those taken to return a live animal to the sea or process a dead animal. The PIFSC will implement a number of handling protocols to minimize potential harm to marine mammals that are incidentally taken during the course of fisheries research activities. In general, protocols have already been prepared for use on PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 commercial fishing vessels. Although commercial fisheries take larger quantities of marine mammals than fisheries research, the nature of such takes by entanglement or capture are similar. Therefore, the PIFSC would adopt commercial fishery disentanglement and release protocols (summarized below), which should increase post-release survival. Handling or disentangling marine mammals carries inherent safety risks, and using best professional judgment and ensuring human safety is paramount. Captured or entangled live or injured marine mammals are released from research gear and returned to the water as soon as possible with no gear or as little gear remaining on the animal as possible. Animals are released without removing them from the water if possible, and data collection is conducted in such a manner as not to delay release of the animal(s) or endanger the crew. PIFSC is responsible for training PIFSC and partner affiliates on how to identify different species; handle and bring marine mammals aboard a vessel; assess the level of consciousness; remove fishing gear; and return marine mammals to water. Human safety is always the paramount concern. Trawl Survey Visual Monitoring and Operational Protocols Visual monitoring protocols, described above, are an integral component of trawl mitigation protocols. Observation of marine mammal presence and behaviors in the vicinity of PIFSC trawl survey operations allows for the application of professional judgment in determining the appropriate course of action to minimize the incidence of marine mammal gear interactions. The OOD, CS or other designated member of the scientific party, and crew standing watch on the bridge visually scan surrounding waters with the naked eye and rangefinding binoculars (or monocular) for marine mammals prior to, during, and until all trawl operations are completed. Some sets may be made at night or in other limited visibility conditions, when visual observation may be conducted using the naked eye and available vessel lighting with limited effectiveness. Most research vessels engaged in trawling will have their station in view for 15 minutes or 2 nmi prior to reaching the station, depending upon the sea state and weather. Many vessels will inspect the tow path before deploying the trawl gear, adding another 15 minutes of observation time and gear preparation prior to deployment. E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules Personnel on watch must monitor the station for 30 minutes prior to deploying the trawl. If personnel on watch observe marine mammals, they must immediately alert the OOD and CS as to their best estimate of the species, quantity, distance, bearing, and direction of travel relative to the ship’s position. If any marine mammals are sighted around the vessel during the 30minute pre-deployment monitoring period before setting gear, the vessel must be moved away from the animals to a different section of the sampling area if the animals appear to be at risk of interaction with the gear. This is what is referred to as the ‘‘move-on’’ rule. If marine mammals are observed at or near the station, the CS and the vessel operator will determine the best strategy to avoid potential takes based on the species encountered, their numbers and behavior, their position and vector relative to the vessel, and other factors. For instance, a whale transiting through the area and heading away from the vessel may not require any move, or may require only a short move from the initial sampling site, while a pod of dolphins gathered around the vessel may require a longer move from the initial sampling site or possibly cancellation of the station if the dolphins follow the vessel. After moving on, if marine mammals are still visible from the vessel and appear to be at risk, the CS or OOD may decide, in consultation with the vessel operator, to move again or to skip the station. In many cases, the survey design can accommodate sampling at an alternate site. Gear would not be deployed if marine mammals have been sighted from the ship in its approach to the station unless those animals do not appear to be in danger of interactions with the gear, as determined by the judgment of the CS and vessel operator. The efficacy of the ‘‘move-on’’ rule is limited during nighttime or other periods of limited visibility, although operational lighting from the vessel illuminates the water in the immediate vicinity of the vessel during gear setting and retrieval. In these cases, it is again the judgment of the CS or vessel operator as based on experience and in consultation with the vessel operator to exercise due diligence and to decide on appropriate course of action to avoid unintentional interactions. Once the trawl net is in the water, the OOD, CS or other designated scientist, and/or crew standing watch continue to monitor the waters around the vessel and maintain a lookout for marine mammals as environmental conditions allow (as noted previously, visibility can be limited for various reasons). If VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 marine mammals are sighted before the gear is fully retrieved, the most appropriate response to avoid incidental take is determined by the professional judgment of the OOD, in consultation with the CS and vessel operator as necessary. These judgments take into consideration the species, numbers, and behavior of the animals, the status of the trawl net operation (net opening, depth, and distance from the stern), the time it would take to retrieve the net, and safety considerations for changing speed or course. If marine mammals are sighted during haul-back operations, there is the potential for entanglement during retrieval of the net, especially when the trawl doors have been retrieved and the net is near the surface and no longer under tension. The risk of catching an animal may be reduced if the trawling continues and the haulback is delayed until after the marine mammal has lost interest in the gear or left the area. The appropriate course of action to minimize the risk of incidental take is determined by the professional judgment of the OOD, vessel operator, and the CS based on all situation variables, even if the choices compromise the value of the data collected at the station. The PIFSC must retrieve trawl gear immediately if marine mammals are believed to be captured/entangled in a net, line, or associated gear and follow disentanglement protocols. We recognize that it is not possible to dictate in advance the exact course of action that the OOD or CS should take in any given event involving the presence of marine mammals in proximity to an ongoing trawl tow, given the sheer number of potential variables, combinations of variables that may determine the appropriate course of action, and the need to prioritize human safety in the operation of fishing gear at sea. Nevertheless, PIFSC will account for all factors that shape both successful and unsuccessful decisions, and these details will be fed back into PIFSC training efforts and ultimately help to refine the best professional judgment that determines the course of action taken in future scenarios (see further discussion in ‘‘Proposed Monitoring and Reporting’’). If trawling operations have been suspended because of the presence of marine mammals, the vessel will resume trawl operations (when practicable) only when the animals are believed to have departed the area. This decision is at the discretion of the OOD/ CS and is dependent on the situation. PIFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station following visual PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 15339 monitoring pre-deployment. PIFSC shall implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval. Standard tow durations for midwater trawls are between two and four hours as target species (e.g., pelagic stage eteline snappers) are relatively rare, and longer haul times are necessary to acquire the appropriate scientific samples. However, trawl hauls will be terminated and the trawl retrieved upon the determination and professional judgment of the officer on watch, in consultation with the CS or other designated scientist and other experienced crew as necessary, that this action is warranted to avoid an incidental take of a marine mammal. Longline Survey Visual Monitoring and Operational Protocols Visual monitoring requirements for all longline surveys are similar to the general protocols described above for trawl surveys. Please see that section for full details of the visual monitoring protocol and the move-on rule mitigation protocol. In summary, requirements for longline surveys are to: (1) Conduct visual monitoring prior to arrival on station; (2) implement the move-on rule if marine mammals are observed within the area around the vessel and may be at risk of interacting with the vessel or gear; (3) deploy gear as soon as possible upon arrival on station (depending on presence of marine mammals); and (4) maintain visual monitoring effort throughout deployment and retrieval of the longline gear. As was described for trawl gear, the OOD, CS, or personnel on watch will use best professional judgment to minimize the risk to marine mammals from potential gear interactions during deployment and retrieval of gear. If marine mammals are detected during setting operations and are considered to be at risk, immediate retrieval or suspension of operations may be warranted. If operations have been suspended because of the presence of marine mammals, the vessel will resume setting (when practicable) only when the animals are believed to have departed the area. If marine mammals are detected during retrieval operations and are considered to be at risk, haulback may be postponed. The PIFSC must retrieve gear immediately if marine mammals are believed to be captured/entangled in a net, line, or associated gear and follow disentanglement protocols. These decisions are at the discretion of the E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15340 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules OOD/CS and are dependent on the situation. The 1994 amendments to the MMPA tasked NMFS with establishing monitoring programs to estimate mortality and serious injury of marine mammals incidental to commercial fishing operations and to develop Take Reduction Plans (TRPs) in order to reduce commercial fishing takes of strategic stocks of marine mammals below Potential Biological Removal (PBR). The False Killer Whale Take Reduction Plan (FKWTRP) was finalized in 2012 to reduce the level of mortality and serious injury of false killer whales in Hawaii-based longline fisheries for tuna and billfish (77 FR 71260; November 29, 2012). Regulatory measures in the FKWTRP include gear requirements, prohibited areas, training and certification in marine mammal handling and release, and posting of NMFS-approved placards on longline vessels. PIFSC does not conduct fisheries and ecosystem research with longline gear within any of the exclusion zones established by the FKWTRP. Because longline research is currently conducted in conjunction with commercial fisheries, operational characteristics (e.g., branchline and floatline length, hook type and size, bait type, number of hooks between floats) of the longline gear in Hawai1i, American Samoa, Guam, the Commonwealth of the Northern Marianas, or EEZs of the Pacific Insular Areas adhere to the requirements on commercial longline gear based on NMFS regulations (summarized at https:// www.fisheries.noaa.gov/pacific-islands/ resources-fishing/regulation-summariesand-compliance-guides-pacific-islands and specified in 50 CFR 229, 300, 404, 600, and 665). PIFSC will adhere to the regulations detailed at the link above, and generally follow the following procedures when setting and retrieving longline gear: • When shallow-setting anywhere and setting longline gear from the stern: Completely thawed and blue-dyed bait will be used (two 1-pound containers of blue-dye will be kept on the boat for backup). Fish parts and spent bait with all hooks removed will be kept for strategic offal discard. Retained swordfish will be cut in half at the head; used heads and livers will also be used for strategic offal discard. Setting will only occur at night and begin 1 hour after local sunset and finish 1 hour before next sunrise, with lighting kept to a minimum. • When deep-setting north of 23° N and setting longline gear from the stern: 45 Gram (g) or heavier weights will be VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 attached within 1 m of each hook. A line shooter will be used to set the mainline. Completely thawed and bluedyed bait will be used (two 1-pound containers of blue-dye will be kept on the boat for backup). Fish parts and spent bait with all hooks removed will be kept for strategic offal discard. Retained swordfish will be cut in half at the head; used heads and livers will also be used for strategic offal discard. • When shallow-setting anywhere and setting longline gear from the side: Mainline will be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line shooter is used, it will be mounted at least 1 m forward from the stern corner. A specified bird curtain will be used aft of the setting station during the set. Gear will be deployed so that hooks do not resurface. 45 g or heavier weights will be attached within 1 m of each hook. • When deep-setting north of 23° N and setting longline gear from the side: Mainline will be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line shooter is used, it will be mounted at least 1 m forward from the stern corner. A specified bird curtain will be used aft of the setting station during the set. Gear will be deployed so that hooks do not resurface. 45 g or heavier weights will be attached within 1 m of each hook. Operational characteristics in nonWestern Pacific Regional Fisheries Management Council areas of jurisdiction (i.e., outside of the areas under NMFS jurisdiction named above) adhere to the regulations of the applicable management agencies. These agencies include the Western and Central Pacific Fisheries Commission (WCPFC), International Commission for the Conservation of Atlantic Tunas (ICCAT), and Inter-American Tropical Tuna Commission (IATTC). These operational characteristics include specifications in WCPFC 2008, WCPFC 2007, ICCAT 2010, ICCAT 2011, IATTC 2011, and IATTC 2007. Small Boat and Diver Operations The following measures are carried out by the PIFSC when working in and around shallow water coral reef habitats. These measures are intended to avoid and minimize impacts to marine mammals and other protected species. Transit from the open ocean to shallowreef survey regions (depths of < 35 m) of atolls and islands should be no more than 3 nmi, dependent upon prevailing weather conditions and regulations. Each team conducts surveys and inwater operations with at least two divers observing for the proximity of marine mammals, a coxswain driving the small PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 boat, and a topside spotter working in tandem. Topside spotters may also work as coxswains, depending on team assignment and boat layout. Spotters and coxswains will be tasked with specifically looking out for divers, marine mammals, and environmental hazards. Before approaching any shoreline or exposed reef, all observers will examine the beach, shoreline, reef areas, and any other visible land areas within the line of sight for marine mammals. Divers, spotters, and coxswains undertake consistent due diligence and take every precaution during operations to avoid interactions with any marine mammals (e.g., flushing Hawaiian monk seals). Scientists, divers, and coxswains follow the Best Management Practices (BMPs) for boat operations and diving activities. These practices include but are not limited to the following: • Constant vigilance shall be kept for the presence of marine mammals; • When piloting vessels, vessel operators shall alter course to remain at least 100 m from marine mammals; • Reduce vessel speed to 10 kt or less when piloting vessels within 1 km (as visibility permits) of marine mammals; • Marine mammals should not be encircled or trapped between multiple vessels or between vessels and the shore; • If approached by a marine mammal (within 100 yards for large whales and 50 yards for all other marine mammals), put the engine in neutral and allow the animal to pass; • Unless specifically covered under a separate NMFS research permit that allows activity in proximity to marine mammals, all in-water work, not already underway, will be postponed and must not commence until large whales are beyond 100 yards or other marine mammals are beyond 50 yards; • Should marine mammals enter the area while in-water work is already in progress, the activity may continue only when that activity has no reasonable expectation to adversely affect the animal(s); • No feeding, touching, riding, or otherwise intentionally interacting with any marine mammals is permitted unless undertaken to rescue a marine mammal or otherwise authorized by another permit; • Mechanical equipment will also be monitored to ensure no accidental entanglements occur with protected species (e.g., with PAM float lines, transect lines, and oceanographic equipment stabilization lines); and • Team members will immediately respond to an entangled animal, halting operations and providing an onsite E:\FR\FM\22MRP2.SGM 22MRP2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules response assessment (allowing the animal to disentangle itself, assisting with disentanglement, etc.), unless doing so would put divers, coxswains, or other staff at risk of injury or death. jbell on DSKJLSW7X2PROD with PROPOSALS2 Marine Debris Research and Removal Activities Land vehicle (trucks) operations will occur in areas of marine debris where vehicle access is possible from highways or rural/dirt roads adjacent to coastal resources. Prior to initiating any marine debris removal operations, marine debris personnel (marine ecosystem specialists) will thoroughly examine the beaches and near shore environments/waters for Hawaiian monk seals before approaching marine debris sites and initiating removal activities. Debris will be retrieved by personnel who are knowledgeable of and act in compliance with all Federal laws, rules and regulations governing wildlife in the Papaha¯naumokua¯kea Marine National Monument and MHI. This includes, but is not limited to maintaining a minimum distance of 50 yards from all monk seals and a minimum of 100 yards from female seals with pups. Bottomfishing The PIFSC carefully considered the potential risk of marine mammal interactions with its bottomfishing hook-and-line research gear, and determined that the risk was not high enough to warrant requesting takes in that gear. However, PIFSC intends to implement mitigation measures to reduce the risk of potential interactions and to help improve our understanding of what those risks might be for different species. These efforts will help inform the adaptive management process to determine the appropriate type of mitigation needed for research conducted with bottomfishing gear. PIFSC will implement the following mitigation measures: • Visual monitoring for marine mammals for at least 30 minutes before gear is set and implementation of the ‘‘move-on’’ rule as described above; • To avoid attracting any marine mammals to a bottomfishing operation, dead fish and bait will not be discarded from the vessel while actively fishing. Dead fish and bait may be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area; • If a hooked fish is retrieved and it appears to the fisher that it has been damaged by a monk seal or other marine mammal, then visual monitoring will be enhanced around the vessel for the next ten minutes. Fishing may continue VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 during this time. If a shark is sighted, then visual monitoring would be returned to normal. If a monk seal, bottlenose dolphin, or other marine mammal is seen in the vicinity of a bottomfishing operation, then the gear would be retrieved immediately and the vessel would be moved to another sampling location where marine mammals are not present. Catch loss would be tallied on the data sheet, as would a ‘‘move-on’’ for a marine mammal; and • If bottomfishing gear is lost while fishing, then visual monitoring will be enhanced around the vessel for the next ten minutes. Fishing may continue during this time. If a shark is sighted, then visual monitoring would be returned to normal under the assumption that marine mammals and sharks are unlikely to co-occur. If a monk seal, bottlenose dolphin, or other marine mammal is seen in the vicinity, it would be observed until a determination can be made of whether gear is sighted attached to the animal, gear is suspected to be on the animal (i.e., it demonstrates uncharacteristic behavior such as thrashing), or gear is not observed on the animal and it behaves normally. If a cetacean or monk seal is sighted with the gear attached or suspected to be attached, then the procedures and actions for incidental takes would be initiated (see ‘‘Monitoring and Reporting’’). Gear loss would be tallied on the data sheet, as would a ‘‘move-on’’ because of a marine mammal. Instrument and Trap Deployment Visual monitoring requirements for instrument and trap deployments are similar to the general protocols described above for trawl and longline surveys. Please see that section for full details of the visual monitoring protocol and the move-on rule mitigation protocol. In summary, requirements for longline surveys are to: (1) Conduct visual monitoring prior to arrival on station; (2) implement the move-on rule if marine mammals are observed within the area around the vessel and may be at risk of interacting with the vessel or gear; (3) deploy gear as soon as possible upon arrival on station (depending on presence of marine mammals); and (4) maintain visual monitoring effort throughout deployment and retrieval of the gear. As was described for trawl and longline gear, the OOD, CS, or personnel on watch will use best professional judgment to minimize the risk to marine mammals from potential gear interactions during deployment and retrieval of gear. If marine mammals are detected during setting operations and PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 15341 are considered to be at risk, immediate retrieval or suspension of operations may be warranted. If operations have been suspended because of the presence of marine mammals, the vessel will resume setting (when practicable) only when the animals are believed to have departed the area. If marine mammals are detected during retrieval operations and are considered to be at risk, haulback may be postponed. PIFSC must retrieve gear immediately if marine mammals are believed to be entangled in an instrument or trap line or associated gear and follow disentanglement protocols. These decisions are at the discretion of the OOD/CS and are dependent on the situation. In order to minimize the potential risk of entanglement during instrument and trap deployment, PIFSC is evaluating possible modifications to total line length and the relative length of floating line to sinking line used for stationary gear that is deployed from ships or small boats (e.g., stereo-video data collection). A certain amount of extra line (or scope) is needed whenever deploying gear/instruments to the seafloor to prevent currents from moving the gear/instruments off station. If the line is floating line and there is no current then the scope will be floating on the surface. Alternatively, scope in sinking line may gather below the water surface when currents are slow or absent. Because current speeds vary, there is a need for scope every time that gear is deployed. Line floating on the surface presents the greatest risk for marine mammal entanglement because: (1) When marine mammals (e.g., humpback whales) come to the surface to breathe, the floating line is more likely to become caught in their mouths or around their fins; and (2) humpback whales tend to spend most of their time near the surface, generally in the upper 150 m of the water column. Currently, PIFSC uses only floating line to deploy stationary gear from ships or small boats. Floating line is used in order to maintain the vertical orientation of the line immediately above the instrument on the seafloor. The floating line also helps to keep the line off of the seafloor where it could snag or adversely affect benthic organisms or habitat features. This mitigation measure would involve the use of sinking line for approximately the top 1⁄3 of the line. The other approximately lower 2⁄3 would still be floating line. This configuration would allow any excess scope in the line to sink to a depth where it would be below where most E:\FR\FM\22MRP2.SGM 22MRP2 15342 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 whales and dolphins commonly occur. Specific line lengths, and ratios of floating line to sinking line, would vary with actual depth and the total line length. This mitigation measure would not preclude the risk of whales or dolphins swimming into the submerged line, but this risk is believed to be lower relative to line floating on the surface. Based on our evaluation of the PIFSC’s proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed Monitoring and Reporting In order to issue an incidental take authorization for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth ‘‘requirements pertaining to the monitoring and reporting of such taking.’’ The MMPA implementing regulations at 50 CFR 216.104(a)(13) require that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the 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 marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors; • How anticipated responses to stressors impact either: (1) Long-term VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 fitness and survival of individual marine mammals; or (2) populations, species, or stocks; • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and • Mitigation and monitoring effectiveness. PIFSC shall designate a compliance coordinator who shall be responsible for ensuring compliance with all requirements of any LOA issued pursuant to these regulations and for preparing for any subsequent request(s) for incidental take authorization. PIFSC plans to make its training, operations, data collection, animal handling, and sampling protocols more systematic in order to improve its ability to understand how mitigation measures influence interaction rates and ensure its research operations are conducted in an informed manner and consistent with lessons learned from those with experience operating these gears in close proximity to marine mammals. It is in this spirit that we propose the monitoring requirements described below. Visual Monitoring Marine mammal watches are a standard part of conducting fisheries research activities, and are implemented as described previously in ‘‘Proposed Mitigation.’’ Dedicated marine mammal visual monitoring occurs as described (1) for some period prior to deployment of most research gear; (2) throughout deployment and active fishing of all research gears; (3) for some period prior to retrieval of longline gear; and (4) throughout retrieval of all research gear. This visual monitoring is performed by trained PIFSC personnel or other trained crew during the monitoring period. Observers record the species and estimated number of animals present and their behaviors. This may provide valuable information towards an understanding of whether certain species may be attracted to vessels or certain survey gears. Separately, personnel on watch (those navigating the vessel and other crew; these will typically not be PIFSC personnel) monitor for marine mammals at all times when the vessel is being operated. The primary focus for this type of watch is to avoid striking marine mammals and to generally avoid navigational hazards. These personnel on watch typically have other duties associated with navigation and other vessel operations and are not required to record or report to the scientific party data on marine mammal sightings, PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 except when gear is being deployed, soaking, or retrieved or when marine mammals are observed in the path of the ship during transit. PIFSC will also monitor disturbance of hauled-out pinnipeds resulting from the presence of researchers, paying particular attention to the distance at which pinnipeds are disturbed. Disturbance will be recorded according to the three-point scale, representing increasing seal response to disturbance, shown in Table 16. Training NMFS considers the proposed suite of monitoring and operational procedures to be necessary to avoid adverse interactions with protected species and still allow PIFSC to fulfill its scientific missions. However, some mitigation measures such as the move-on rule require judgments about the risk of gear interactions with protected species and the best procedures for minimizing that risk on a case-by-case basis. Vessel operators and Chief Scientists are charged with making those judgments at sea. They are all highly experienced professionals but there may be inconsistencies across the range of research surveys conducted and funded by PIFSC in how those judgments are made. In addition, some of the mitigation measures described above could also be considered ‘‘best practices’’ for safe seamanship and avoidance of hazards during fishing (e.g., prior surveillance of a sample site before setting trawl gear). At least for some of the research activities considered, explicit links between the implementation of these best practices and their usefulness as mitigation measures for avoidance of protected species may not have been formalized and clearly communicated with all scientific parties and vessel operators. NMFS therefore proposes a series of improvements to PIFSC protected species training, awareness, and reporting procedures. NMFS expects these new procedures will facilitate and improve the implementation of the mitigation measures described above. PIFSC will initiate a process for its Chief Scientists and vessel operators to communicate with each other about their experiences with marine mammal interactions during research work with the goal of improving decision-making regarding avoidance of adverse interactions. As noted above, there are many situations where professional judgment is used to decide the best course of action for avoiding marine mammal interactions before and during the time research gear is in the water. The intent of this mitigation measure is E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules to draw on the collective experience of people who have been making those decisions, provide a forum for the exchange of information about what went right and what went wrong, and try to determine if there are any rulesof-thumb or key factors to consider that would help in future decisions regarding avoidance practices. PIFSC would coordinate not only among its staff and vessel captains but also with those from other fisheries science centers and institutions with similar experience. PIFSC would also develop a formalized marine mammal training program required for all PIFSC research projects and for all crew members that may be posted on monitoring duty or handle incidentally caught marine mammals. Training programs would be conducted on a regular basis and would include topics such as monitoring and sighting protocols, species identification, decision-making factors for avoiding take, procedures for handling and documenting marine mammals caught in research gear, and reporting requirements. PIFSC will work with the Pacific Islands commercial fisheries Observer Program to customize a new marine mammal training program for researchers and ship crew. The Observer Program currently provides protected species training (and other types of training) for NMFS-certified observers placed on board commercial fishing vessels. PIFSC Chief Scientists and appropriate members of PIFSC research crews will be trained using similar monitoring, data collection, and reporting protocols for marine mammal as is required by the Observer Program. All PIFSC research crew members that may be assigned to monitor for the presence of marine mammals during future surveys will be required to attend an initial training course and refresher courses annually or as necessary. The implementation of this training program would formalize and standardize the information provided to all research crew that might experience marine mammal interactions during research activities. For all PIFSC research projects and vessels, written cruise instructions and protocols for avoiding adverse interactions with marine mammals will be reviewed and, if found insufficient, made fully consistent with the Observer Program training materials and any guidance on decision-making that arises out of the two training opportunities described above. In addition, informational placards and reporting procedures will be reviewed and updated as necessary for consistency and accuracy. All PIFSC research VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 cruises already include pre-sail review of marine mammal protocols for affected crew but PIFSC will also review its briefing instructions for consistency and accuracy. Following the first year of implementation of the LOA, PIFSC will convene a workshop with PIRO Protected Resources, PIFSC fishery scientists, NOAA research vessel personnel, and other NMFS staff as appropriate to review data collection, marine mammal interactions, and refine data collection and mitigation protocols, as required. PIFSC will also coordinate with NMFS’ Office of Science and Technology to ensure training and guidance related to handling procedures and data collection is consistent with other fishery science centers, where appropriate. Handling Procedures and Data Collection PIFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS’s Office of Protected Resources (OPR). Improved standardization of handling procedures were discussed previously in ‘‘Proposed Mitigation.’’ In addition to improving marine mammal survival post-release, PIFSC believes adopting these protocols for data collection will also increase the information on which ‘‘serious injury’’ determinations (NMFS, 2012a, 2012b) are based, improve scientific knowledge about marine mammals that interact with fisheries research gear, and increase understanding of the factors that contribute to these interactions. PIFSC personnel will receive standard guidance and training on handling marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to the water, and record activities pertaining to the interaction. PIFSC will record interaction information on their own standardized forms. To aid in serious injury determinations and comply with the current NMFS Serious Injury Guidelines, researchers will also answer a series of supplemental questions on the details of marine mammal interactions. Finally, for any marine mammals that are killed during fisheries research activities, scientists will collect data and samples pursuant to Appendix D of the PIFSC Draft Environmental Assessment, ‘‘Protected Species Mitigation and PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 15343 Handling Procedures for PIFSC Fisheries Research Vessels.’’ Reporting As is normally the case, PIFSC will coordinate with the relevant stranding coordinators for any unusual marine mammal behavior and any stranding, beached live/dead, or floating marine mammals that are encountered during field research activities. The PIFSC will follow a phased approach with regard to the cessation of its activities and/or reporting of such events, as described in the proposed regulatory texts following this preamble. In addition, Chief Scientists (or vessel operators) will provide reports to PIFSC leadership and to the Office of Protected Resources (OPR). As a result, when marine mammals interact with survey gear, whether killed or released alive, a report provided by the CS will fully describe any observations of the animals, the context (vessel and conditions), decisions made and rationale for decisions made in vessel and gear handling. The circumstances of these events are critical in enabling PIFSC 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 PIFSC will submit annual summary reports to OPR including: (1) Annual line-kilometers surveyed during which the EK60, EM 300, and ADCP Ocean Surveyor (or equivalent sources) were predominant (see ‘‘Estimated Take by Acoustic Harassment’’ for further discussion), specific to each region; (2) Summary information regarding use of all longline and trawl gear, including number of sets, tows, etc., specific to each research area and gear; (3) Accounts of surveys where marine mammals were observed during sampling but no interactions occurred; (4) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why; (5) Summary information related to any disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to the three-point scale shown in Table 14, and distance of closest approach; (6) A written description of any mitigation research investigation efforts and findings (e.g., line modifications); (7) A written evaluation of the effectiveness of PIFSC mitigation strategies in reducing the number of marine mammal interactions with E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15344 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; and (8) Details on marine mammal-related training taken by PIFSC and partner affiliates. The period of reporting will be annually. The first annual report must cover the period from the date of issuance of the LOA through the end of that calendar year and the entire first full calendar year of the authorization. Subsequent reports would cover only one full calendar year. Each annual report must be submitted not less than ninety days following the end of a given year. PIFSC shall provide a final report within thirty days following resolution of comments on the draft report. Submission of this information serves an adaptive management framework function by allowing NMFS to make appropriate modifications to mitigation and/or monitoring strategies, as necessary, during the proposed five-year period of validity for these regulations. NMFS has established a formal incidental take reporting system, the Protected Species Incidental Take (PSIT) database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to NMFS leadership and other relevant staff, alerting them to the event and to the fact that updated information describing the circumstances of the event has been inputted to the database. The PSIT and CS reports represent not only valuable real-time reporting and information dissemination tools but also serve as an archive of information that may be mined in the future to study why takes occur by species, gear, region, etc. The PIFSC is required to report all takes of protected species, including marine mammals, to this database within 48 hours of the occurrence and following standard protocol. In the unanticipated event that PIFSC fisheries research activities clearly cause the take of a marine mammal in a prohibited manner, PIFSC personnel engaged in the research activity shall immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the PIFSC Director (or designee). The incident must be reported immediately to OPR and the NMFS Pacific Islands Regional Office. OPR will review the circumstances of the prohibited take and work with PIFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by PIFSC regarding VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 continuation of the specified activity is subject to OPR concurrence. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident including, but not limited to, monitoring prior to and occurring at time of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Status of all sound source use in the 24 hours preceding the incident; (vii) Water depth; (viii) Fate of the animal(s) (e.g. dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared, etc.); and (ix) Photographs or video footage of the animal(s). In the event that PIFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), PIFSC shall immediately report the incident to OPR and the NMFS Pacific Islands Regional Office. The report must include the information identified above. Activities may continue while OPR reviews the circumstances of the incident. OPR will work with PIFSC to determine whether additional mitigation measures or modifications to the activities are appropriate. In the event that PIFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to PIFSC fisheries research activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), PIFSC shall report the incident to OPR and the Pacific Islands Regional Office, NMFS, within 24 hours of the discovery. PIFSC shall provide photographs or video footage or other documentation of the stranded animal sighting to OPR. In the event of a ship strike of a marine mammal by any PIFSC or partner vessel involved in the activities covered by the authorization, PIFSC or partner shall immediately report the information described above, as well as the following additional information: (i) Vessel’s speed during and leading up to the incident; (ii) Vessel’s course/heading and what operations were being conducted; (iii) Status of all sound sources in use; PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 (iv) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; (v) Estimated size and length of animal that was struck; and (vi) Description of the behavior of the marine mammal immediately preceding and following the strike. PIFSC will also collect and report all necessary data, to the extent practicable given the primacy of human safety and the well-being of captured or entangled marine mammals, to facilitate serious injury (SI) determinations for marine mammals that are released alive. PIFSC will require that the CS complete data forms and address supplemental questions, both of which have been developed to aid in SI determinations. PIFSC understands the critical need to provide as much relevant information as possible about marine mammal interactions to inform decisions regarding SI determinations. In addition, the PIFSC will perform all necessary reporting to ensure that any incidental M/SI is incorporated as appropriate into relevant SARs. Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ by mortality, serious injury, and Level A or Level B harassment, we consider other factors, such as the likely nature of any behavioral responses (e.g., intensity, duration), the context of any such responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the E:\FR\FM\22MRP2.SGM 22MRP2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, and specific consideration of take by M/SI previously authorized for other NMFS research activities). Serious Injury and Mortality We note here that the takes from potential gear interactions enumerated below could result in non-serious injury, but their worse potential outcome (mortality) is analyzed for the purposes of the negligible impact determination. In addition, we discuss here the connection, and differences, between the legal mechanisms for authorizing incidental take under section 101(a)(5) for activities such as those proposed by PIFSC, and for authorizing incidental take from commercial fisheries. In 1988, Congress amended the MMPA’s provisions for addressing incidental take of marine mammals in commercial fishing operations. Congress directed NMFS to develop and recommend a new long-term regime to govern such incidental taking (see MMC, 1994). The need to develop a system suited to the unique circumstances of commercial fishing operations led NMFS to suggest a new conceptual means and associated regulatory framework. That concept, PBR, and a system for developing plans containing regulatory and voluntary measures to reduce incidental take for fisheries that exceed PBR were incorporated as sections 117 and 118 in the 1994 amendments to the MMPA. In Conservation Council for Hawaii v. National Marine Fisheries Service, 97 F. Supp. 3d 1210 (D. Haw. 2015), which concerned a challenge to NMFS’ regulations and LOAs to the Navy for activities assessed in the 2013–2018 HSTT MMPA rulemaking, the Court ruled that NMFS’ failure to consider PBR when evaluating lethal takes in the negligible impact analysis under section 101(a)(5)(A) violated the requirement to use the best available science. PBR is defined in section 3 of the MMPA as ‘‘the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population’’ (OSP) and, although not controlling, can be one measure considered among other factors when evaluating the effects of M/ SI on a marine mammal species or stock during the section 101(a)(5)(A) process. OSP is defined in section 3 of the MMPA as ‘‘the number of animals which will result in the maximum VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.’’ An overarching goal of the MMPA is to ensure that each species or stock of marine mammal is maintained at or returned to its OSP. PBR values are calculated by NMFS as the level of annual removal from a stock that will allow that stock to equilibrate within OSP at least 95 percent of the time, and is the product of factors relating to the minimum population estimate of the stock (Nmin), the productivity rate of the stock at a small population size, and a recovery factor. Determination of appropriate values for these three elements incorporates significant precaution, such that application of the parameter to the management of marine mammal stocks may be reasonably certain to achieve the goals of the MMPA. For example, calculation of the minimum population estimate (Nmin) incorporates the level of precision and degree of variability associated with abundance information, while also providing reasonable assurance that the stock size is equal to or greater than the estimate (Barlow et al., 1995), typically by using the 20th percentile of a log-normal distribution of the population estimate. In general, the three factors are developed on a stock-specific basis in consideration of one another in order to produce conservative PBR values that appropriately account for both imprecision that may be estimated, as well as potential bias stemming from lack of knowledge (Wade, 1998). Congress called for PBR to be applied within the management framework for commercial fishing incidental take under section 118 of the MMPA. As a result, PBR cannot be applied appropriately outside of the section 118 regulatory framework without consideration of how it applies within the section 118 framework, as well as how the other statutory management frameworks in the MMPA differ from the framework in section 118. PBR was not designed and is not used as an absolute threshold limiting commercial fisheries. Rather, it serves as a means to evaluate the relative impacts of those activities on marine mammal stocks. Even where commercial fishing is causing M/SI at levels that exceed PBR, the fishery is not suspended. When M/ SI exceeds PBR in the commercial fishing context under section 118, NMFS may develop a take reduction plan, usually with the assistance of a take reduction team. The take reduction plan will include measures to reduce and/or minimize the taking of marine PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 15345 mammals by commercial fisheries to a level below the stock’s PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather utilizes the take reduction process to further mitigate the effects of fishery activities via additional bycatch reduction measures. In other words, under section 118 of the MMPA, PBR does not serve as a strict cap on the operation of commercial fisheries that may incidentally take marine mammals. Similarly, to the extent PBR may be relevant when considering the impacts of incidental take from activities other than commercial fisheries, using it as the sole reason to deny (or issue) incidental take authorization for those activities would be inconsistent with Congress’s intent under section 101(a)(5), NMFS’ long-standing regulatory definition of ‘‘negligible impact,’’ and the use of PBR under section 118. The standard for authorizing incidental take for activities other than commercial fisheries under section 101(a)(5) continues to be, among other things that are not related to PBR, whether the total taking will have a negligible impact on the species or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to make the negligible impact finding or to authorize incidental take through multiyear regulations, nor does its companion provision at section 101(a)(5)(D) for authorizing non-lethal incidental take under the same negligible-impact standard. NMFS’ MMPA implementing regulations state that take has a negligible impact when it does not ‘‘adversely affect the species or stock through effects on annual rates of recruitment or survival’’—likewise without reference to PBR. When Congress amended the MMPA in 1994 to add section 118 for commercial fishing, it did not alter the standards for authorizing non-commercial fishing incidental take under section 101(a)(5), implicitly acknowledging that the negligible impact standard under section 101(a)(5) is separate from the PBR metric under section 118. In fact, in 1994 Congress also amended section 101(a)(5)(E) (a separate provision governing commercial fishing incidental take for species listed under the ESA) to add compliance with the new section 118 but retained the standard of the negligible impact finding under section 101(a)(5)(A) (and section 101(a)(5)(D)), showing that Congress understood that the determination of negligible impact and the application of PBR may share E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15346 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules certain features but are, in fact, different. Since the introduction of PBR in 1994, NMFS had used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries managementrelated provisions of the MMPA. Prior to the Court’s ruling in Conservation Council for Hawaii v. National Marine Fisheries Service and consideration of PBR in a series of section 101(a)(5) rulemakings, there were a few examples where PBR had informed agency deliberations under other MMPA sections and programs, such as playing a role in the issuance of a few scientific research permits and subsistence takings. But as the Court found when reviewing examples of past PBR consideration in Georgia Aquarium v. Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. 2015), where NMFS had considered PBR outside the commercial fisheries context, ‘‘it has treated PBR as only one ‘quantitative tool’ and [has not used it] as the sole basis for its impact analyses.’’ Further, the agency’s thoughts regarding the appropriate role of PBR in relation to MMPA programs outside the commercial fishing context have evolved since the agency’s early application of PBR to section 101(a)(5) decisions. Specifically, NMFS’ denial of a request for incidental take authorization for the U.S. Coast Guard in 1996 seemingly was based on the potential for lethal take in relation to PBR and did not appear to consider other factors that might also have informed the potential for ship strike in relation to negligible impact (61 FR 54157; October 17, 1996). The MMPA requires that PBR be estimated in SARs and that it be used in applications related to the management of take incidental to commercial fisheries (i.e., the take reduction planning process described in section 118 of the MMPA and the determination of whether a stock is ‘‘strategic’’ as defined in section 3), but nothing in the statute requires the application of PBR outside the management of commercial fisheries interactions with marine mammals. Nonetheless, NMFS recognizes that as a quantitative metric, PBR may be useful as a consideration when evaluating the impacts of other human-caused activities on marine mammal stocks. Outside the commercial fishing context, and in consideration of all known human-caused mortality, PBR can help inform the potential effects of M/SI requested to be authorized under section 101(a)(5)(A). As noted by NMFS and the U.S. Fish and Wildlife Service in our implementing regulations for the VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 1986 amendments to the MMPA (54 FR 40341, September 29, 1989), the Services consider many factors, when available, in making a negligible impact determination, including, but not limited to, the status of the species or stock relative to OSP (if known); whether the recruitment rate for the species or stock is increasing, decreasing, stable, or unknown; the size and distribution of the population; and existing impacts and environmental conditions. In this multi-factor analysis, PBR can be a useful indicator for when, and to what extent, the agency should take an especially close look at the circumstances associated with the potential mortality, along with any other factors that could influence annual rates of recruitment or survival. When considering PBR during evaluation of effects of M/SI under section 101(a)(5)(A), we first calculate a metric for each species or stock that incorporates information regarding ongoing anthropogenic M/SI from all sources into the PBR value (i.e., PBR minus the total annual anthropogenic mortality/serious injury estimate in the SAR), which is called ‘‘residual PBR’’ (Wood et al., 2012). We first focus our analysis on residual PBR because it incorporates anthropogenic mortality occurring from other sources. If the ongoing human-caused mortality from other sources does not exceed PBR, then residual PBR is a positive number, and we consider how the anticipated or potential incidental M/SI from the activities being evaluated compares to residual PBR using the framework in the following paragraph. If the ongoing anthropogenic mortality from other sources already exceeds PBR, then residual PBR is a negative number and we consider the M/SI from the activities being evaluated as described further below. When ongoing total anthropogenic mortality from the applicant’s specified activities does not exceed PBR and residual PBR is a positive number, as a simplifying analytical tool we first consider whether the specified activities could cause incidental M/SI that is less than 10 percent of residual PBR (the ‘‘insignificance threshold,’’ see below). If so, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI for the marine mammal stock in question that alone (i.e., in the absence of any other take) will not adversely affect annual rates of recruitment and survival. As such, this amount of M/SI would not be expected to affect rates of recruitment or survival in a manner resulting in more than a negligible impact on the affected PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 stock unless there are other factors that could affect reproduction or survival, such as Level A and/or Level B harassment, or other considerations such as information that illustrates uncertainty involved in the calculation of PBR for some stocks. In a few prior incidental take rulemakings, this threshold was identified as the ‘‘significance threshold,’’ but it is more accurately labeled an insignificance threshold, and so we use that terminology here, as we did in the U.S. Navy’s Atlantic Fleet Training and Testing (AFTT) final rule (83 FR 57076; November 14, 2018), and two-year rule extension (84 FR 70712; December 23, 2019), as well as the U.S. Navy’s Hawaii-Southern California Training and Testing (HSTT) final rule (83 FR 66846; December 27, 2018) and two-year rule extension (85 FR 41780; July 10, 2020). Assuming that any additional incidental take by Level B harassment from the activities in question would not combine with the effects of the authorized M/SI to exceed the negligible impact level, the anticipated M/SI caused by the activities being evaluated would have a negligible impact on the species or stock. However, M/SI above the 10 percent insignificance threshold does not indicate that the M/SI associated with the specified activities is approaching a level that would necessarily exceed negligible impact. Rather, the 10 percent insignificance threshold is meant only to identify instances where additional analysis of the anticipated M/SI is not required because the negligible impact standard clearly will not be exceeded on that basis alone. Where the anticipated M/SI is near, at, or above residual PBR, consideration of other factors (positive or negative), including those outlined above, as well as mitigation is especially important to assessing whether the M/SI will have a negligible impact on the species or stock. PBR is a conservative metric and not sufficiently precise to serve as an absolute predictor of population effects upon which mortality caps would appropriately be based. For example, in some cases stock abundance (which is one of three key inputs into the PBR calculation) is underestimated because marine mammal survey data within the U.S. EEZ are used to calculate the abundance even when the stock range extends well beyond the U.S. EEZ. An underestimate of abundance could result in an underestimate of PBR. Alternatively, we sometimes may not have complete M/SI data beyond the U.S. EEZ to compare to PBR, which could result in an overestimate of E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules residual PBR. The accuracy and certainty around the data that feed any PBR calculation, such as the abundance estimates, must be carefully considered to evaluate whether the calculated PBR accurately reflects the circumstances of the particular stock. M/SI that exceeds residual PBR or PBR may still potentially be found to be negligible in light of other factors that offset concern, especially when robust mitigation and adaptive management provisions are included. In Conservation Council for Hawaii v. National Marine Fisheries Service, which involved the challenge to NMFS’ issuance of LOAs to the Navy in 2013 for activities in the HSTT Study Area, the Court reached a different conclusion, stating, ‘‘Because any mortality level that exceeds PBR will not allow the stock to reach or maintain its OSP, such a mortality level could not be said to have only a ‘negligible impact’ on the stock.’’ As described above, the Court’s statement fundamentally misunderstands the two terms and incorrectly indicates that these concepts (PBR and ‘‘negligible impact’’) are directly connected, when in fact nowhere in the MMPA is it indicated that these two terms are equivalent. Specifically, PBR was designed as a tool for evaluating mortality and is defined as the number of animals that can be removed while ‘‘allowing that stock to reach or maintain its [OSP].’’ OSP describes a population that falls within a range from the population level that is the largest supportable within the ecosystem to the population level that results in maximum net productivity, and thus is an aspirational management goal of the overall statute with no specific timeframe by which it should be met. PBR is designed to ensure minimal deviation from this overarching goal, with the formula for PBR typically ensuring that growth towards OSP is not reduced by more than 10 percent (or equilibrates to OSP 95 percent of the time). Given that, as applied by NMFS, PBR certainly allows a stock to ‘‘reach or maintain its [OSP]’’ in a conservative and precautionary manner—and we can therefore clearly conclude that if PBR were not exceeded, there would not be adverse effects on the affected species or stocks. Nonetheless, it is equally clear that in some cases the time to reach this aspirational OSP level could be slowed by more than 10 percent (i.e., total human-caused mortality in excess of PBR could be allowed) without adversely affecting a species or stock through effects on its rates of recruitment or survival. Thus even in situations where the inputs to calculate VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PBR are thought to accurately represent factors such as the species’ or stock’s abundance or productivity rate, it is still possible for incidental take to have a negligible impact on the species or stock even where M/SI exceeds residual PBR or PBR. As discussed above, while PBR is useful in informing the evaluation of the effects of M/SI in section 101(a)(5)(A) determinations, it is just one consideration to be assessed in combination with other factors and is not determinative. For example, as explained above, the accuracy and certainty of the data used to calculate PBR for the species or stock must be considered. And we reiterate the considerations discussed above for why it is not appropriate to consider PBR an absolute cap in the application of this guidance. Accordingly, we use PBR as a trigger for concern while also considering other relevant factors to provide a reasonable and appropriate means of evaluating the effects of potential mortality on rates of recruitment and survival, while acknowledging that it is possible to exceed PBR (or exceed 10 percent of PBR in the case where other humancaused mortality is exceeding PBR but the specified activity being evaluated is an incremental contributor, as described in the last paragraph) by some small amount and still make a negligible impact determination under section 101(a)(5)(A). We note that on June 17, 2020, NMFS finalized new Criteria for Determining Negligible Impact under MMPA section 101(a)(5)(E). The guidance explicitly notes the differences in the negligible impact determinations required under section 101(a)(5)(E), as compared to sections 101(a)(5)(A) and 101(a)(5)(D), and specifies that the procedure in that document is limited to how the agency conducts negligible impact analyses for commercial fisheries under section 101(a)(5)(E). In the proposed rule (and above), NMFS has described its method for considering PBR to evaluate the effects of potential mortality in the negligible impact analysis. NMFS has reviewed the 2020 guidance and determined that our consideration of PBR in the evaluation of mortality as described above and in the proposed rule remains appropriate for use in the negligible impact analysis for the PIFSC’s fisheries research activities under section 101(a)(5)(A). Our evaluation of the M/SI for each of the species and stocks for which mortality could occur follows. By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 15347 mortality, we begin our evaluation of whether the potential incremental addition of M/SI through PIFSC research activities may affect the species’ or stock’s annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity (see Harassment section below). We propose to authorize take by M/ SI over the five-year period of validity for these proposed regulations as indicated in Table 16 below. For the purposes of the negligible impact analysis, we assume that all takes from gear interaction could potentially be in the form of M/SI. We previously authorized the take by M/SI of marine mammals incidental to fisheries research operations conducted by the SWFSC (see 80 FR 58981 and 80 FR 68512), the NWFSC (see 83 FR 36370 and 83 FR 47135), and the Alaska Fisheries Science Center (AFSC) (see 84 FR 46788 and 84 FR 54893). However, this take would not occur to the same stocks for which we propose to authorize take incidental to PIFSC fisheries research operations; therefore, we do not consider M/SI takes from other science center activities. The final rule for the U.S. Navy’s HSTT also authorized take of the Hawai1i stock of sperm whales by M/SI. Therefore, that authorized take by the Navy has been considered in this assessment. As used in this document, other ongoing sources of human-caused (anthropogenic) mortality refers to estimates of realized or actual annual mortality reported in the SARs and does not include authorized (but unrealized) or unknown mortality. Below, we consider the total taking by M/SI proposed for authorization for PIFSC to produce a maximum annual M/SI take level (including take of unidentified marine mammals that could accrue to any relevant stock) and compare that value to the stock’s PBR value, considering ongoing sources of anthropogenic mortality (as described in footnote 4 of Table 16 and in the following discussion). PBR and annual M/SI values considered in Table 16 reflect the most recent information available (i.e., final 2019 SARs). In the Harassment section below, we consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity. E:\FR\FM\22MRP2.SGM 22MRP2 VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 PO 00000 Hawai1i .................................... Hawai1i Pelagic ....................... Hawai1i Pelagic ....................... All stocks except Hawai1i Pelagic. Hawai1i Pelagic or unspecified Central North Pacific .............. Hawai1i .................................... all stocks ................................. Hawai1i .................................... Hawai1i .................................... Hawai1i .................................... All stocks except Hawai1i ........ Hawai1i .................................... Hawai1i .................................... All stocks ................................ All stocks ................................ Stock 1,540 10,103 Unknown 55,795 10,640 11,613 72,528 N/A 19,503 4,559 665 61,021 2,105 723 21,815 N/A Stock abundance 0.2 0.4 0.2 0.6 0.2 0.2 0.6 0.4 0.2 0.2 0.4 0.4 0.2 0.2 0.6 0.4 Proposed PIFSC M/SI take (annual) 1 2 9.3 83 undetermined 403 56 82 423 N/A 106 13.9 6.2 449 10 4.3 140 N/A Stock PBR 7.6 25 0 0 1.1 0 2.1 N/A 0.9 0.7 1.0 0 0 0 0 N/A Stock annual M/SI 0 0 0 0 0 0 0 0 0 0.14 0 0 0 0 0 0 U.S. Navy HSTT authorized take by M/SI 1.7 58 N/A 403 54.9 82 420.9 N/A 105.1 13.06 5.2 449 10 4.3 140 N/A r-PBR (PBRstock annual M/SI) 3 11.76 0.69 N/A 0.15 0.36 0.24 0.14 N/A 0.19 1.53 7.69 0.09 2.00 4.65 0.43 N/A Proposed M/SI take/r-PBR (%) Please see Table 5 and preceding text for details on estimated take by M/SI. 1 As explained earlier in this document, gear interaction could result in mortality, serious injury, or Level A harassment. Because we do not have sufficient information to enable us to parse out these outcomes, we present such take as a pool. For purposes of this negligible impact analysis we assume the worst case scenario (that all such takes incidental to research activities result in mortality). 2 This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock as a result of NMFS’s fisheries research activities and is the number carried forward for evaluation in the negligible impact analysis (later in this document). 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 This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI, which is presented in the SARs) (see Table 3). For some stocks, a minimum population abundance value (and therefore PBR) is unavailable. In these cases, the proportion of estimated population abundance represented by the Level B harassment total and/or the proportion of residual PBR represented by the estimated maximum annual M/SI cannot be calculated. 4 PBR known for Kauai and Ni1ihau and Hawaiian Islands stocks but a total PBR for multiple stocks cannot be determined. 5 PIFSC fisheries and ecosystem research would not occur within the ranges of other specified false killer whale stocks. ‘‘Unspecified stock’’ only occurs on the high seas. 6 Stock abundance and PBR presented only for Hawai1i Pelagic stock, which is the only stock with estimates of population and PBR. 7 Stock abundance and PBR presented only for Hawai1i Island stock, which is the only stock with estimates of population and PBR. False killer whale (Hawai1i pelagic or unspecified) 5 ................. Humpback whale (Central North Pacific stock) ........................ Kogia spp. (Hawai1i stocks) ....................................................... Pantropical spotted dolphin (all stocks) 6 .................................. Pygmy killer whale (Hawai1i stock ) ........................................... Risso’s dolphin (Hawai1i stock) .................................................. Rough-toothed dolphin (Hawai1i stock) ..................................... Rough-toothed dolphin (all stocks except above) ..................... Short-finned pilot whale (Hawai1i stock) .................................... Sperm whale (Hawai1i stock ) .................................................... Spinner dolphin (all stocks) 7 ..................................................... Striped dolphin (all stocks) ........................................................ Blainville’s beaked whale (Hawai1i stock) .................................. Cuvier’s Beaked whale (Hawai1i pelagic stock) ........................ Bottlenose dolphin (Hawai1i pelagic stock) ................................ Bottlenose dolphin (All stocks, except above) 4 ........................ Species TABLE 17—SUMMARY INFORMATION RELATED TO PIFSC PROPOSED ANNUAL TAKE BY MORTALITY OR SERIOUS INJURY AUTHORIZATION, 2021–2026 jbell on DSKJLSW7X2PROD with PROPOSALS2 15348 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules Frm 00052 Fmt 4701 Sfmt 4702 E:\FR\FM\22MRP2.SGM 22MRP2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules The majority of stocks that may potentially be taken by M/SI (11 of 15) fall below the insignificance threshold (i.e., 10 percent of residual PBR). The annual proposed take of false killer whales is slightly above the insignificance threshold (11.76 percent of the Hawai1i pelagic stock residual PBR). An additional three stocks do not have current PBR values and therefore are evaluated using other factors which are discussed later. In this section, we first consider stocks for which the proposed authorized M/SI falls below the insignificance threshold. Next, we consider those stocks with proposed M/ SI above the insignificance threshold (i.e., Hawai1i pelagic stock of false killer whales) and those without PBR values or known annual M/SI (bottlenose dolphin (all stocks except Hawai1i Pelagic); Hawai1i stocks of Kogia species; and rough-toothed dolphin (all stocks except Hawai1i)). jbell on DSKJLSW7X2PROD with PROPOSALS2 Stocks With M/SI Below the Insignificance Threshold As noted above, for a species or stock with incidental M/SI less than 10 percent of residual PBR, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI that alone (i.e., in the absence of any other take and barring any other unusual circumstances) will clearly not adversely affect annual rates of recruitment and survival. In this case, as shown in Table 16, the following species or stocks have proposed M/SI from PIFSC fisheries research below their insignificance threshold: Blainville’s beaked whale (Hawai1i stock), Cuvier’s Beaked whale (Hawai1i pelagic stock), bottlenose dolphin (Hawai1i pelagic stock), humpback whale (Central North Pacific stock), pantropical spotted dolphin (all stocks), pygmy killer whale (Hawai1i stock), Risso’s dolphin (Hawai1i stock), roughtoothed dolphin (Hawai1i stock), shortfinned pilot whale (Hawai1i stock), sperm whale (Hawai1i stock), spinner dolphin (all stocks), and striped dolphin (all stocks). For these stocks with authorized M/SI below the insignificance threshold, there are no other known factors, information, or unusual circumstances that indicate anticipated M/SI below the insignificance threshold could have adverse effects on annual rates of recruitment or survival and they are not discussed further. VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 Stocks With M/SI Above the Insignificance Threshold and/or Undetermined PBR For false killer whales from the Hawai1i Pelagic stock, the annual potential M/SI due to PIFSC fisheries research activities is approximately 12 percent of residual PBR. PBR for the Hawai1i Pelagic stock is currently set at 9.3 and the annual average of known ongoing anthropogenic M/SI is 7.6, yielding a residual PBR value of 1.7. The annual average M/SI incidental to PIFSC research activity is 0.2, or 11.76 percent of residual PBR. The only known source of other anthropogenic mortality for this species is in commercial fisheries. The status of this transboundary stock of false killer whales is assessed based on the estimated abundance and estimates of mortality and serious injury within the U.S. EEZ of the Hawaiian Islands because estimates of human-caused mortality and serious injury from all U.S. and non-U.S. sources in high seas waters are not available, and because the geographic range of this stock beyond the Hawaiian Islands EEZ is poorly known. The False Killer Whale Take Reduction Plan (FKWTRP) was finalized in 2012 to reduce the level of mortality and serious injury of false killer whales in Hawaii-based longline fisheries for tuna and billfish (77 FR 71260; November 29, 2012). For the 5yr period prior to the implementation of the FKWTRP, the average rate of mortality and serious injury to pelagic stock false killer whales within the Hawaiian Islands EEZ (13.6 animals per year) exceeded the PBR (9.3 animals per year). In most cases, the NMFS Guidelines for Assessing Marine Mammal Stocks (NMFS 2005) suggest pooling estimates of mortality and serious injury across 5 years to reduce the effects of sampling variation. If there have been significant changes in fishery operation that are expected to affect take rates, such as the 2013 implementation of the FKWTRP, the guidelines recommend using only the years since regulations were implemented. Using only bycatch information from 2013– 2015, the estimated mortality and serious injury of false killer whales within the HI EEZ (4.1) is below the PBR (9.3) (Caretta et al., 2018). Using the average M/SI from 2013–2015 (i.e., the years with available data after FKWTRP established) to calculate residual PBR, the annual average M/SI incidental to PIFSC research activity (0.2 per year) is 3.85 percent of residual PBR, which falls below the insignificance threshold. There are no other factors that would lead us to believe that take by M/SI of PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 15349 12 percent of SARS-reported residual PBR (7.6 animals per year) would be problematic for this species. Therefore, takes of false killer whales under this LOA are not expected or likely to adversely affect the species or stock through effects on annual rates of recruitment or survival. PBR is unknown for the Hawai1i stocks of dwarf and pygmy sperm whales (Kogia spp.). A 2002 shipboard line-transect survey resulted in abundance estimates for Kogia species in the Hawaiian Islands EEZ (Barlow 2006); however, there were no on-effort sightings of Kogia during the 2010 shipboard survey of the Hawaiian EEZ (Bradford et al., 2013), such that there is no current abundance estimates for these stocks (Caretta et al., 2014). No interactions between nearshore fisheries and dwarf sperm whales have been reported in Hawaiian waters. One pygmy sperm whale was found entangled in fishing gear off Oahu in 1994 (Bradford & Lyman 2013), but the gear was not described and the fishery not identified. No estimates of humancaused mortality or serious injury are currently available for nearshore hook and line fisheries because these fisheries are not observed or monitored for protected species bycatch. There are currently two distinct longline fisheries based in Hawaii: A deep-set longline (DSLL) fishery that targets primarily tunas, and a shallow-set longline fishery (SSLL) that targets swordfish. Both fisheries operate within U.S. waters and on the high seas. Between 2007 and 2011, one pygmy or dwarf sperm whale was observed hooked in the SSLL fishery (100 percent observer coverage) (McCracken 2013; Bradford & Forney 2013). Based on an evaluation of the observer’s description of the interaction and following the most recently developed criteria for assessing serious injury in marine mammals (NMFS 2012), this animal was considered not seriously injured (Bradford & Forney 2013). No pygmy or dwarf sperm whales were observed hooked or entangled in the DSLL fishery (20–22 percent observer coverage). Eight unidentified cetaceans were taken in the DSLL fishery, and two unidentified cetaceans were taken in the SSLL fishery, some of which may have been Kogia spp. There have been no reported fishery related mortality or injuries within the Hawaiian Islands EEZ, such that the total mortality and serious injury can be considered to be insignificant and approaching zero. Therefore, we expect that the proposed take of Kogia spp. by M/SI incidental to PIFSC research activity (no more than one over five E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15350 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules years or in any year, and average of 0.2 per year) would be insignificant. The Kauai/Ni1ihau, Oahu, 4-Islands, and Hawai1i Islands stocks of bottlenose dolphins (Hawai1i Islands stock complex) were most recently assessed in the 2017 SARs (Caretta et al., 2018). PBR was calculated for the Kauai/Ni1ihau (1.0 bottlenose dolphins per year) and Hawai1i Island (0.9 dolphins per year) stocks, but was undetermined for the Oahu and 4-Islands stocks. Annual total M/SI was unknown for all stocks. Prior to the 2017 SARs, the most recent assessment of the Hawai1i Islands stock complex was in 2013, where the PBR for the Oahu and 4-Islands stocks were calculated as 4.9 and 1.6 dolphins per year, respectively (Caretta et al., 2014). The total estimated M/SI for bottlenose dolphins within the U.S. EEZ around the Hawaiian Islands is 0 animals per year. Using the estimated zero annual stock M/SI, the residual PBR for each stock is equal to the most recently calculated PBR for each stock, from the 2017 and 2013 SARs (1.0 animals per year for the Kauai/Ni1ihau stock, 4.9 for the Oahu stock, 1.6 for the 4-Islands stock, and 0.9 for the Hawai1i Island stock). PIFSC cannot predict which specific stock of bottlenose dolphins may be taken by M/SI. Assuming the proposed annual average take by M/SI incidental to PIFSC fisheries research activities (0.4 per year) occurs within each stock, the take is above the insignificance threshold (i.e., 10 percent of residual PBR) for all stocks except the Oahu stock. We consider qualitative information such as population dynamics and context to determine if the proposed amount of bottlenose dolphin takes from these stocks would have a negligible impact on annual rates of survival and recruitment. Marine mammals are K-selected species, meaning they have few offspring, long gestation and parental care periods, and reach sexual maturity later in life. Therefore, between years, reproduction rates vary based on age and sex class ratios. As such, population dynamics is a driver when looking at reproduction rates. We focus on reproduction here because we conservatively consider inter-stock reproduction is the primary means of recruitment for these stocks. Recent photo-identification and genetic studies off Oahu, Maui, Lanai, Kauai, Niihau, and Hawaii suggest limited movement of bottlenose dolphins between islands and offshore waters (Baird et al., 2009; Martien et al., 2012). Several studies have purported that male bottlenose dolphins are more likely to engage in depredation or related behaviors with trawls and VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 recreational fishing (Corkeron et al., 1990; Powell & Wells, 2011) or become entangled in gear (Reynolds et al., 2000; Adimey et al., 2014). Male bias has also been reported for strandings with evidence of fishery interaction (Stolen et al., 2007; Fruet et al., 2012; Adimey et al., 2014) and for in situ observations of fishery interaction (Corkeron et al., 1990; Finn et al., 2008; Powell & Wells, 2011). Therefore, we believe males (which are less likely to influence recruitment rate) are more likely at risk than females. Given reproduction is the primary means of recruitment and females play a significantly larger role in their offspring’s reproductive success (also known as Bateman’s Principle), the mortality of females rather than males is, in general, more likely to influence recruitment rate. PIFSC has requested, and NMFS is proposing to authorize, two takes of bottlenose dolphins by M/SI from any stock over the course of five years. The average 5-yr estimates of annual mortality and serious injury for bottlenose dolphins in the Hawaiian Islands EEZ is zero, the stocks are not facing heavy anthropogenic pressure, and there are no identified continuous indirect stressors threatening the stock. While we cannot determine from which stock(s) the potential take by M/SI may occur, we do not expect that take by M/SI of up to two bottlenose dolphins by M/SI over five years from any of the identified or undefined stocks in the PIFSC research areas would adversely affect annual rates of recruitment or survival for these populations. PIFSC has requested take of roughtoothed dolphins by M/SI from the Hawai1i stock (0.6 per year) and from all stocks other than the Hawai1i stock (0.4 per year). The proposed take by M/SI for the Hawai1i stock of rough-toothed dolphins falls below the insignificance threshold. For rough-toothed dolphins from all stocks except the Hawai1i stock, PIFSC has requested an average of 0.2 takes by M/SI per year from longline fisheries research and 0.2 takes by M/SI per year from instrument deployments. The only other defined stock of roughtoothed dolphins in the PIFSC is the American Samoa stock. However, PIFSC will not be conducting longline fisheries research in the ASARA, therefore no take of rough-toothed dolphins from the American Samoa stock by M/SI incidental to longline fisheries research is expected or proposed to be authorized. No abundance estimates are currently available for rough-toothed dolphins in U.S. EEZ waters of American Samoa. However, density estimates for roughtoothed dolphins in other tropical Pacific regions can provide a range of PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 likely abundance estimates in this unsurveyed region. Using density estimates from other regions, NMFS has calculated a minimum abundance estimate (426–2,731 animals) and resulting PBR (3.4 to 22 animals per year) for the American Samoa stock of rough-toothed dolphins (Caretta et al., 2011). Information on fishery-related mortality of cetaceans in American Samoa is limited, but the gear types used in American Samoan fisheries are responsible for marine mammal mortality and serious injury in other fisheries throughout U.S. waters. The most recent information on average incidental M/SI of rough-toothed dolphins in American Samoa is from longline fisheries observed from 2006 to 2008 (Caretta et al., 2011). During that time period, the average annual take of rough-toothed dolphins M/SI in American Samoa was 3.6 per year. That average exceeds the lowest estimated PBR for the American Samoa stock of rough-toothed dolphins, but the potential average annual take of roughtoothed dolphins by M/SI incidental to instrument deployment (0.2 per year) is well below the insignificance threshold using the highest estimated PBR. In fact, if the 2006–2008 average fishery-related take by M/SI is still accurate, the proposed average annual take by M/SI incidental to instrument deployment falls below the insignificance threshold if the actual PBR is as low as six animals per year. Absent any new information on annual fishery-related M/SI or PBR, NMFS does not expect that 0.2 takes per year of the American Samoa stock of rough-toothed dolphins by M/SI would be problematic for the stock. If all 0.4 PIFSC proposed takes by M/SI per year (0.2 from longline fisheries research and 0.2 from instrument deployment) were to occur to an undescribed stock of rough-toothed dolphins, due to their extensive range throughout tropical and warm-temperate waters, NMFS also does not expect that such a small number of takes by M/SI would be problematic for populations of roughtoothed dolphins in the Pacific Ocean. Therefore, takes of rough-toothed dolphins under this LOA are not expected or likely to adversely affect the species or stock through effects on annual rates of recruitment or survival. Harassment As described in greater depth previously (see ‘‘Acoustic Effects’’), we do not believe that PIFSC use of active acoustic sources has the likely potential to cause any effect exceeding Level B harassment of marine mammals. We have produced what we believe to be precautionary estimates of potential E:\FR\FM\22MRP2.SGM 22MRP2 15351 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules incidents of Level B harassment. There is a general lack of information related to the specific way that these acoustic signals, which are generally highly directional and transient, interact with the physical environment and to a meaningful understanding of marine mammal perception of these signals and occurrence in the areas where PIFSC operates. The procedure for producing these estimates, described in detail in ‘‘Estimated Take Due to Acoustic Harassment,’’ represents NMFS’s best effort towards balancing the need to quantify the potential for occurrence of Level B harassment with this general lack of information. The sources considered here have moderate to high output frequencies, generally short ping durations, and are typically focused (highly directional with narrower beamwidths) to serve their intended purpose of mapping specific objects, depths, or environmental features. In addition, some of these sources can be operated in different output modes (e.g., energy can be distributed among multiple output beams) that may lessen the likelihood of perception by and potential impacts on marine mammals in comparison with the quantitative estimates that guide our proposed take authorization. We also produced estimates of incidents of potential Level B harassment due to disturbance of hauled-out Hawaiian monk seals that may result from the physical presence of researchers; these estimates are combined with the estimates of Level B harassment that may result from use of active acoustic devices. The estimated take by Level B harassment in each research area is calculated using the total proposed research effort over the course of five years. In order to assess the proposed take on an annual basis, the total estimated take has been divided by five. TABLE 18—TOTAL PROPOSED TAKE BY LEVEL B HARASSMENT IN THE HARA Stock abundance Species Stock Blainville’s beaked whale ...................................... Bottlenose dolphin ................................................ Hawai1i .......................... Hawai1i Pelagic ............. Kauai and Ni1ihau ......... Oahu b ........................... 4-Island Region b .......... Hawai1i Island ............... Hawai1i .......................... Hawai1i .......................... Hawai1i Insular .............. Northwestern Hawaiian Islands. Hawai1i pelagic .............. Hawai1i .......................... Hawai1i .......................... Hawai1i .......................... Hawai1i .......................... Hawai1i .......................... Kohala .......................... Hawai1i pelagic .............. Oahu ............................. 4-Island Region ............ Hawai1i Island ............... Hawai1i .......................... Hawai1i .......................... Hawai1i .......................... Hawai1i .......................... Hawai1i .......................... Hawai1i .......................... Hawai1i pelagic .............. Kauai and Ni1ihau ......... Oahu/4-Island Region .. Hawai1i Island ............... Kure and Midway Atoll b Pearl and Hermes Reef Hawai1i pelagic .............. N/A ................................ N/A ................................ Cuvier’s beaked whale ......................................... Dwarf sperm whale ............................................... False killer whale .................................................. Fraser’s dolphin .................................................... Hawaiian monk seal ............................................. Killer whale ........................................................... Longman’s beaked whale ..................................... Melon-headed whale ............................................ Pantropical spotted dolphin .................................. Pygmy killer whale ................................................ Pygmy sperm whale ............................................. Risso’s dolphin ...................................................... Rough-toothed dolphin ......................................... Short-finned pilot whale ........................................ Sperm whale ......................................................... Spinner dolphin ..................................................... Striped dolphin ...................................................... Unidentified beaked whale ................................... Unidentified Mesoplodon ...................................... HARA Level B 5-year take HARA Level B average annual take a 208 189 42 38 73 1,730 218 339 15 346 44 68 145 442 c 979 6 753 74 30 490 29 88 d 468 1 151 15 6 98 91 705 1,148 623 1,931 451 210 18 141 230 125 386 90 42 525 283 458 105 57 92 2,105 21,815 184 743 191 128 723 Unknown 167 617 1,540 51,491 1,351 146 7,619 8,666 447 55,795 Unknown Unknown Unknown 10,640 Unknown 11,613 72,528 19,503 4,559 Unknown 601 355 665 260 Unknown 61,021 N/A N/A Annual percent of stock 2.0 0.2 20.5 5.1 19.8 29.5 2.0 N/A 26.1 11.0 1.9 0.2 34.6 4.1 2.0 0.2 1.3 0.2 N/A N/A N/A 0.2 N/A 2.0 0.2 2.0 2.0 N/A 7.0 11.8 6.3 16.2 N/A 0.2 N/A N/A a Annual take by Level B harassment is calculated by dividing the five-year total estimated take by five, rounded to nearest whole number estimates for these stocks are not considered current. We nevertheless present the most recent abundance estimates, as these represent the best available information for use in this document. c 79 takes incidental to use of acoustic sources, 900 takes incidental to disturbance from human presence. d 15.8 takes incidental to use of acoustic sources, 450 takes incidental to disturbance from human presence (maximum potential annual take from physical disturbance). jbell on DSKJLSW7X2PROD with PROPOSALS2 b Abundance With the exception of the American Samoa stocks of spinner dolphins, rough-toothed dolphins, and false killer whales, marine mammals in the MARA, ASARA, and WCPRA are not assigned VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 to stocks, and no current abundance estimates are available for these stocks or populations. Therefore, rather than presenting the proposed takes by Level B harassment as proportions of relevant PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 stocks, the proposed take in these three research areas is grouped in Table 18 by species. E:\FR\FM\22MRP2.SGM 22MRP2 15352 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules TABLE 19—TOTAL PROPOSED TAKE BY LEVEL B HARASSMENT IN THE MARA, ASARA, AND WCPRA Species MARA 5-year take MARA Annual take ASARA 5-year take ASARA Annual take WCPRA 5-year take WCPRA Annual take All areas 5-year total take 123 6 43 25 1 9 0 82 31 0 16 6 91 85 32 18 17 6 214 173 106 43 35 21 0 1,020 159 283 0 4 0 73 0 204 32 57 0 1 0 15 0 749 b 10 0 0 4 0 0 0 150 b2 0 0 1 0 0 32 754 107 283 0 4 328 73 6 151 21 57 0 1 66 15 32 2,523 276 451 0 12 328 146 6 505 55 90 0 3 66 29 271 7 416 30 38 227 175 120 74 167 0 54 1 83 6 8 45 35 24 15 33 0 214 0 0 0 b 272 836 195 b 44 0 123 0 43 0 0 0 b 54 167 39 b9 0 25 0 221 41 307 500 281 841 197 105 237 123 0 44 8 61 100 56 168 39 21 47 25 0 706 48 723 530 591 1,904 567 269 311 413 0 141 10 145 106 118 381 113 54 62 83 0 Blainville’s beaked whale Bottlenose dolphin ........... Cuvier’s beaked whale ..... Deraniyagala’s beaked whale ............................ Dwarf sperm whale .......... False killer whale ............. Fraser’s dolphin ............... Hawaiian monk seal ......... Killer whale ....................... Longman’s beaked whale Melon-headed whale ........ Pantropical spotted dolphin ............................... Pygmy killer whale ........... Pygmy sperm whale ........ Risso’s dolphin ................. Rough-toothed dolphin ..... Short-finned pilot whale ... Sperm whale .................... Spinner dolphin ................ Striped dolphin ................. Unidentified beaked whale Unidentified Mesoplodon a Annual All areas annual take a take by Level B harassment is calculated by dividing the five-year total estimated take by five, rounded to nearest whole number. Samoa stock; stock abundance unknown. jbell on DSKJLSW7X2PROD with PROPOSALS2 b American The acoustic sources proposed to be used by PIFSC are generally of low source level, higher frequency, and narrow beamwidth. As described previously, there is some minimal potential for temporary effects to hearing for certain marine mammals, but most effects would likely be limited to temporary behavioral disturbance. Effects on individuals that are taken by Level B harassment will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity (e.g., Ellison et al., 2012). Individuals may move away from the source if disturbed; however, because the source is itself moving and because of the directional nature of the sources considered here, there is unlikely to be even temporary displacement from areas of significance and any disturbance would be of short duration. The areas ensonified above the Level B harassment threshold during PIFSC surveys are extremely small relative to the overall survey areas. Although there is no information on which to base any distinction between incidents of harassment and individuals harassed, the same factors, in conjunction with the fact that PIFSC survey effort is widely dispersed in space and time, indicate that repeated exposures of the same individuals would be very VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 unlikely. The short term, minor behavioral responses that may occur incidental to PIFSC use of acoustic sources, are not expected to result in impacts the reproduction or survival of any individuals, much less have an adverse impact on the population. Similarly, disturbance of hauled-out Hawaiian monk seals by researchers (expected in the HARA) are expected to be infrequent and cause only a temporary disturbance on the order of minutes. Monitoring results from other activities involving the disturbance of pinnipeds and relevant studies of pinniped populations that experience more regular vessel disturbance indicate that individually significant or population level impacts are unlikely to occur. PIFSC’s nearshore surveys that may result in disturbance to Hawaiian monk seals are conducted infrequently, with each individual island visited at most once per year. While there is some slight possibility of an individual Hawaiian monk seal moving between islands and being exposed to visual disturbance from multiple PIFSC surveys over the course of the year, it is unlikely that an individual seal would be harassed more than once per year. When considering the individual animals likely affected by this disturbance, only a small fraction of the estimated population abundance of the affected stocks would be expected to experience the disturbance. Therefore, PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 the PIFSC activity cannot be reasonably expected to, and is not reasonably likely to, adversely affect species or stocks through effects on annual rates of recruitment or survival. For these reasons, we do not consider the proposed level of take by acoustic or visual disturbance to represent a significant additional population stressor when considered in context with the proposed level of take by M/ SI for any species, including those for which no abundance estimate is available. Conclusions In summary, as described in the Serious Injury and Mortality section, the proposed takes by serious injury or mortality from PIFSC activities, alone, are unlikely to adversely affect any species or stock through effects on annual rates of recruitment or survival. Further, the low severity and magnitude of expected Level B harassment is not predicted to affect the reproduction or survival of any individual marine mammals, much less the rates of recruitment or survival of any species or stock. Therefore, the authorized Level B harassment, alone or in combination with the SI/M authorized for some species or stocks, will result in a negligible impact on the effected stocks and species. Based on the analysis contained herein of the likely effects of the E:\FR\FM\22MRP2.SGM 22MRP2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, we preliminarily find that the total marine mammal take from the proposed activities will have a negligible impact on the affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(A) of the MMPA for specified activities. The MMPA does not define a threshold under which the authorized number of takes would be considered ‘‘small’’ and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. Please see Tables 17 through 19 for information relating to this small numbers analysis. The total amount of taking proposed for authorization is less than five percent for a majority of stocks, and the total amount of taking proposed for authorization is less than one-third of the stock abundance for all defined stocks. Species without defined stocks typically range across very large areas and it is unlikely that PIFSC’s proposed activities, with their small impact areas, would encounter, much less take more than one third of the stock. For species with defined stocks but no abundance estimates available (American Samoa stocks of false killer whale, roughtoothed dolphin, and spinner dolphin), we note that the anticipated number of incidents of take by Level B harassment are very low for each species (i.e., 2–54 takes by Level B harassment per year). While abundance information is not available for these stocks, we do not expect that the proposed annual take by Level B harassment would represent more than one third of any population to be taken and therefore the total amount of proposed taking would be considered small relative to the overall population size. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by the issuance of regulations to the PIFSC. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Adaptive Management The regulations governing the take of marine mammals incidental to PIFSC fisheries research survey operations would contain an adaptive management component. The inclusion of an adaptive management component will be both valuable and necessary within the context of five-year regulations for activities that have been associated with marine mammal mortality. The reporting requirements associated with this proposed rule are designed to provide OPR with monitoring data from the previous year to allow consideration of whether any changes are appropriate. OPR and the PIFSC will meet annually to discuss the monitoring reports and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows OPR to consider new information from different sources to determine (with input from the PIFSC regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable. The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal research and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs. Endangered Species Act (ESA) There are multiple marine mammal species listed under the ESA with confirmed or possible occurrence in the proposed specified geographical regions (see Table 3). OPR has initiated PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 15353 consultation with NMFS’s Pacific Islands Regional Office under section 7 of the ESA on the promulgation of fiveyear regulations and the subsequent issuance of a 5-year LOA to PIFSC under section 101(a)(5)(A) of the MMPA. This consultation will be concluded prior to issuing any final rule. Request for Information NMFS requests interested persons to submit comments, information, and suggestions concerning the PIFSC request and the proposed regulations (see ADDRESSES). All comments will be reviewed and evaluated as we prepare final rules and make final determinations on whether to issue the requested authorizations. This document and referenced documents provide all environmental information relating to our proposed action for public review. Classification The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866. Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NMFS is the sole entity that would be responsible for adhering to the requirements in these proposed regulations, and NMFS is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared. This proposed rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648– 0151 and include applications for regulations, subsequent LOAs, and reports. E:\FR\FM\22MRP2.SGM 22MRP2 15354 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules List of Subjects in 50 CFR Part 219 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: March 8, 2021. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set forth in the preamble, 50 CFR part 219 is proposed to be amended as follows: PART 219—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 219 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq. 2. Add subpart G to part 219 to read as follows: ■ Subpart G—Taking Marine Mammals Incidental to Pacific Islands Fisheries Science Center Fisheries Research Sec. 219.61 Specified activity and specified geographical region. 219.62 Effective dates. 219.63 Permissible methods of taking. 219.64 Prohibitions. 219.65 Mitigation requirements. 219.66 Requirements for monitoring and reporting. 219.67 Letters of Authorization. 219.68 Renewals and modifications of Letters of Authorization. 219.69–219.70 [Reserved] jbell on DSKJLSW7X2PROD with PROPOSALS2 § 219.61 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the National Marine Fisheries Service’s (NMFS) Pacific Islands Fisheries Science Center (PIFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to research survey program operations. (b) The taking of marine mammals by PIFSC may be authorized in a Letter of Authorization (LOA) only if it occurs during fishery research within the Hawaiian Archipelago, Mariana Archipelago, American Samoa Archipelago, and Western and Central Pacific Ocean. Effective dates. Regulations in this subpart are effective from [30 DAYS AFTER PUBLICATION DATE OF FINAL RULE] VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 § 219.63 Permissible methods of taking. Under LOAs issued pursuant to §§ 216.106 of this chapter and 219.67, the Holder of the LOA (hereinafter ‘‘PIFSC’’) may incidentally, but not intentionally, take marine mammals within the area described in § 219.61(b) in the following ways, provided PIFSC is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA: (a) By Level B harassment associated with physical or visual disturbance of hauled-out pinnipeds; (b) By Level B harassment associated with use of active acoustic systems; and (c) By Level A harassment, serious injury, or mortality provided the take is associated with the use of longline gear, trawl gear, or deployed instruments and traps. § 219.64 Subpart G—Taking Marine Mammals Incidental to Pacific Islands Fisheries Science Center Fisheries Research § 219.62 through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE]. Prohibitions. Notwithstanding takings contemplated in § 219.61 and authorized by a LOA issued under § 216.106 of this chapter and § 219.67, no person in connection with the activities described in § 219.61 may: (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 219.67; (b) Take any marine mammal species or stock not specified in such LOA; (c) Take any marine mammal in any manner other than as specified in the LOA; (d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses. § 219.65 Mitigation requirements. When conducting the activities identified in § 219.61(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 219.67 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions. (1) PIFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration’s (NOAA) Office of Marine and Aviation Operations PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant eventcontingent decision-making processes, are clearly understood and agreed upon. Although the discussion throughout these regulations does not always explicitly reference those with decision making authority from cooperative platforms, all mitigation measures apply with equal force to non-NOAA vessels and personnel as they do to NOAA vessels and personnel. (2) PIFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship’s crew (Commanding Officer or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. (3) PIFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented. (4) When deploying any type of sampling gear at sea, PIFSC 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) PIFSC shall implement handling and/or disentanglement protocols as specified in the guidance that shall be provided to PIFSC survey personnel. (b) Vessel strike avoidance. (1) PIFSC must maintain a 100-meter (m) separation distance between research vessels and large whales at all times. At any time during a survey or transit, if a crew member or designated marine mammal observer standing watch sights marine mammals that may intersect with the vessel course that individual must immediately communicate the presence of marine mammals to the bridge for appropriate course alteration or speed reduction, as possible, to avoid incidental collisions. (2) PIFSC must reduce vessel speed to 10 knots (kt) or less when piloting vessels within 1 kilometer (km; as visibility permits) of marine mammals. (c) Trawl survey protocols. (1) PIFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station. (2) PIFSC shall initiate marine mammal watches (visual observation) at E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules least 30 minutes prior to beginning of net deployment, but shall also conduct monitoring during any pre-set activities including trackline reconnaissance, CTD casts, and plankton or bongo net hauls. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting. (3) PIFSC shall implement the moveon rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed within 500 meters (m) of the planned location in the 10 minutes before setting the trawl gear, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, NWFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further 10 minute observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different section of the sampling area, the moveon rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted further than 500 m from the vessel shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions. (4) PIFSC shall maintain visual monitoring effort during the entire period of time that trawl gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, PIFSC shall take the most appropriate action to avoid marine mammal interaction. PIFSC may use best professional judgment in making this decision. PIFSC must retrieve gear immediately if marine mammals are believed to be captured/entangled in a net or associated gear (e.g., lazy line) and follow disentanglement protocols. (5) If trawling operations have been suspended because of the presence of marine mammals, PIFSC may resume trawl operations when practicable only VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 when the animals are believed to have departed the area. PIFSC may use best professional judgment in making this determination. (6) PIFSC shall implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval. (7) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area. (d) Longline survey protocols. (1) PIFSC shall deploy longline gear as soon as is practicable upon arrival at the sampling station. (2) PIFSC shall initiate marine mammal watches (visual observation) no less than 30 minutes (or for the duration of transit between set locations, if shorter than 30 minutes) prior to both deployment and retrieval of longline gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting. (3) PIFSC shall implement the moveon rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions. PIFSC must PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 15355 retrieve gear immediately if marine mammals are believed to be captured/ entangled in a net, line, or associated gear and follow disentanglement protocols. (4) PIFSC shall maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, PIFSC shall take the most appropriate action to avoid marine mammal interaction. PIFSC may use best professional judgment in making this decision. (5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, PIFSC may resume such operations when practicable only when the animals are believed to have departed the area. PIFSC may use best professional judgment in making this decision. (6) When conducting longline research in Hawai1i, American Samoa, Guam, the Commonwealth of the Northern Marianas, or EEZs of the Pacific Insular Areas, PIFSC shall adhere to the requirements on commercial longline gear as specified in 50 CFR parts 229, 300, 404, 600, and 665, and shall adhere to the following procedures when setting and retrieving longline gear: (i) When shallow-setting anywhere and setting longline gear from the stern, completely thawed and blue-dyed bait shall be used (two one-pound containers of blue-dye shall be kept on the boat for backup). Fish parts and spent bait with all hooks removed shall be kept for strategic offal discard. Retained swordfish shall be cut in half at the head; used heads and livers shall also be used for strategic offal discard. Setting shall only occur at night and begin 1 hour after local sunset and finish 1 hour before next sunrise, with lighting kept to a minimum. (ii) When deep-setting north of 23° N and setting longline gear from the stern, 45 gram (g) or heavier weights shall be attached within 1 m of each hook. A line shooter shall be used to set the mainline. Completely thawed and bluedyed bait shall be used (two 1-pound containers of blue-dye shall be kept on the boat for backup). Fish parts and spent bait with all hooks removed shall be kept for strategic offal discard. Retained swordfish shall be cut in half at the head; used heads and livers shall also be used for strategic offal discard. (iii) When shallow-setting anywhere and setting longline gear from the side, mainline shall be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15356 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules shooter is used, it shall be mounted at least 1 m forward from the stern corner. A specified bird curtain shall be used aft of the setting station during the set. Gear shall be deployed so that hooks do not resurface. 45 g or heavier weights shall be attached within 1 m of each hook. (iv) When deep-setting north of 23° N and setting longline gear from the side, mainline shall be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line shooter is used, it shall be mounted at least 1 m forward from the stern corner. A specified bird curtain shall be used aft of the setting station during the set. Gear shall be deployed so that hooks do not resurface. 45 g or heavier weights shall be attached within 1 m of each hook. (7) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area. (e) Small boat and diver protocols. (1) Surveys and in-water operations shall be conducted with at least two divers observing for the proximity of marine mammals, a coxswain driving the small boat, and a topside spotter. Spotters and coxswains shall be tasked with looking out for divers, marine mammals, and environmental hazards. Topside spotters may also work as coxswains, depending on team assignment and boat layout. (2) Before approaching any shoreline or exposed reef, all observers shall examine any visible land areas for the presence of marine mammals. Scientists, divers, and coxswains shall follow best management practices (BMPs) for boat operations and diving activities, including: (i) Maintain constant vigilance for the presence of marine mammals. (ii) Marine mammals shall not be encircled or trapped between multiple vessels or between vessels and the shore. (iii) If approached by a marine mammal, the engine shall be put in neutral and the animal allowed to pass. (iv) All in-water work not already underway shall be postponed until whales are beyond 100 yards or other marine mammals are beyond 50 yards from the vessel or diver, unless the work is covered under a separate permit that allows activity in proximity to marine mammals. Activity shall commence only after the animal(s) depart the area. (v) If marine mammals enter the area while in-water work is already in progress, the activity may continue only when that activity has no reasonable expectation to adversely affect the animal(s). PIFSC may use best VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 professional judgment in making this decision. (vi) Personnel shall make no attempt to feed, touch, ride, or otherwise intentionally interact with any marine mammals unless undertaken to rescue a marine mammal or otherwise authorized by another permit. (vii) Mechanical equipment shall be monitored to ensure no entanglements occur with protected species. (viii) Team members shall immediately respond to an entangled animal, halting operations and providing and onsite response assessment (allowing the animal to disentangle itself, assisting with disentanglement, etc.), unless doing so would compromise human safety. (f) Marine debris research and removal protocols. (1) Prior to initiating any marine debris removal operations, marine debris personnel shall thoroughly examine the beaches and near shore environments/waters for Hawaiian monk seals before approaching marine debris sites and initiating removal activities. (2) Debris shall be retrieved in compliance with all Federal laws, rules, and regulations governing wildlife in the area, including maintaining a minimum distance of 50 yards from all monk seals and a minimum of 100 yards from female seals with pups. (g) Bottomfishing protocols. (1) PIFSC shall initiate marine mammal watches (visual observation) no less than 30 minutes (or for the duration of transit between set locations, if shorter than 30 minutes) prior to both deployment and retrieval of bottomfishing hook-and-line gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting. (2) PIFSC shall implement the moveon rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 may be made. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions. (3) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area. (4) If a hooked fish is retrieved and it appears to the fisher (based on best professional judgment) that it has been damaged by a marine mammal, visual monitoring shall be enhanced around the vessel for the next ten minutes. Fishing may continue during this time. If a shark is sighted, visual monitoring may return to normal. If a marine mammal is seen in the vicinity of a bottomfishing operation, the gear shall be retrieved immediately and the vessel shall move to another sampling location where marine mammals are not present. Catch loss and a ‘‘move on’’ for marine mammals shall be tallied on the data sheet. (5) If bottomfishing gear is lost while fishing, visual monitoring shall be enhanced around the vessel for the next ten minutes. Fishing may continue during this time. If a shark is sighted, visual monitoring may return to normal. If a marine mammal is observed in the vicinity, it shall be monitored until a determination can be made (based on best professional judgment) of whether gear is sighted attached to the animal, gear is suspected to be on the animal, or gear is not observed on the animal and it behaves normally. If gear is sighted with gear attached or suspected to be attached, procedures and actions for incidental take shall be initiated, as outlined in § 219.66. Gear loss and a ‘‘move on’’ for marine mammals shall be tallied on the data sheet. (h) Instrument and trap deployments. (1) PIFSC shall initiate marine mammal watches (visual observation) no less than 30 minutes (or for the duration of transit between set locations, if shorter than 30 minutes) prior to both deployment and retrieval of instruments and traps. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). E:\FR\FM\22MRP2.SGM 22MRP2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules (2) PIFSC shall implement the moveon rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the instrument or trap deployment shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the gear may be deployed. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions. PIFSC must retrieve gear immediately if marine mammals are believed to be entangled in an instrument or trap line or associated gear and follow disentanglement protocols. jbell on DSKJLSW7X2PROD with PROPOSALS2 § 219.66 Requirements for monitoring and reporting. (a) Compliance coordination. PIFSC shall designate a compliance coordinator who shall be responsible for ensuring compliance with all requirements of any LOA issued pursuant to § 216.106 of this chapter and § 219.67 and for preparing for any subsequent request(s) for incidental take authorization. (b) Visual monitoring program. (1) Marine mammal visual monitoring shall occur prior to deployment of trawl nets, longlines, bottomfishing gear, instruments, and traps, respectively; throughout deployment of gear and active fishing of research gears (not including longline soak time); prior to retrieval of longline gear; and throughout retrieval of all research gear. (2) Marine mammal watches shall be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated. (c) Training. (1) PIFSC must conduct annual training for all chief scientists and other personnel who may be VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. PIFSC may determine the agenda for these trainings. (2) PIFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful. (3) PIFSC shall coordinate with NMFS’ Office of Science and Technology to ensure training and guidance related to handling procedures and data collection is consistent with other fishery science centers, where appropriate. (d) Handling procedures and data collection. (1) PIFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS’s Office of Protected Resources (OPR). (2) For any marine mammal interaction involving the release of a live animal, PIFSC shall collect necessary data to facilitate a serious injury determination, when practicable. (3) PIFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction. (4) PIFSC shall record marine mammal interaction information on standardized forms, which will be subject to approval by OPR. PIFSC shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction. (e) Reporting. (1) Marine mammal capture/entanglements (live or dead) must be reported immediately to the relevant regional stranding coordinator (Hawai1i Statewide Marine Animal Stranding, Entanglement, and Reporting Hotline, 888–256–9840; Guam Conservation Office Hotline, 671–688– 3297; Commonwealth of the Northern Mariana Islands Division of Fish and Wildlife Hotline, 670–287–8537; American Samoa Department of Marine and Wildlife Resources, 684–633–4456), OPR (301–427–8401), and NMFS Pacific Islands Regional Office (808–725–5000). PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 15357 (2) PIFSC shall report all incidents of marine mammal interaction to NMFS’s Protected Species Incidental Take database within 48 hours of occurrence and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling. (3) PIFSC shall submit an annual summary report to OPR: (i) The report must be submitted no later than ninety days following the end of a given calendar year. The first annual report must cover the period from the date of issuance of the LOA through the end of that calendar year and the entire first full calendar year of the authorization. Subsequent reports will cover only one full calendar year. PIFSC shall provide a final report within thirty days following resolution of comments on the draft report. (ii) These reports shall contain, at minimum, the following: (A) Annual line-kilometers surveyed during which the EK60, EM 300, and ADCP Ocean Surveyor (or equivalent sources) were predominant and associated pro-rated estimates of actual take; (B) Summary information regarding use of all longline, bottomfishing, and trawl gear, including number of sets, tows, etc., specific to each gear; (C) Accounts of surveys where marine mammals were observed during sampling but no interactions occurred; (D) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why and, if released alive, serious injury determinations; (E) Summary information related to any disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to the three-point scale, and distance of closest approach; (F) A written description of any mitigation research investigation efforts and findings (e.g., line modifications); (G) A written evaluation of the effectiveness of PIFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; and (H) A summary of all relevant training provided by PIFSC and any E:\FR\FM\22MRP2.SGM 22MRP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 15358 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules coordination with NMFS Office of Science and Technology and the Pacific Islands Regional Office. (f) Reporting of injured or dead marine mammals. (1) In the unanticipated event that the activity defined in § 219.61(a) clearly causes the take of a marine mammal in a prohibited manner, PIFSC personnel engaged in the research activity shall immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the PIFSC Director (or designee). The incident must be reported immediately to OPR and the NMFS Pacific Islands Regional Office. OPR will review the circumstances of the prohibited take and work with PIFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by PIFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident including, but not limited to, monitoring prior to and occurring at time of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Status of all sound source use in the 24 hours preceding the incident; (vii) Water depth; (viii) Fate of the animal(s) (e.g. dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared, etc.); and (ix) Photographs or video footage of the animal(s). (2) In the event that PIFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), PIFSC shall immediately report the incident to OPR and the NMFS Pacific Islands Regional Office The report must include the information identified in paragraph (f)(1) of this section. Activities may continue while OPR reviews the circumstances of the incident. OPR will work with PIFSC to determine whether additional mitigation measures or modifications to the activities are appropriate. (3) In the event that PIFSC discovers an injured or dead marine mammal and VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 determines that the injury or death is not associated with or related to the activities defined in § 219.61(a) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), PIFSC shall report the incident to OPR and the Pacific Islands Regional Office, NMFS, within 24 hours of the discovery. PIFSC shall provide photographs or video footage or other documentation of the stranded animal sighting to OPR. (4) In the event of a ship strike of a marine mammal by any PIFSC or partner vessel involved in the activities covered by the authorization, PIFSC or partner shall immediately report the information in paragraph (f)(1) of this section, as well as the following additional information: (i) Vessel’s speed during and leading up to the incident; (ii) Vessel’s course/heading and what operations were being conducted; (iii) Status of all sound sources in use; (iv) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; (v) Estimated size and length of animal that was struck; and (vi) Description of the behavior of the marine mammal immediately preceding and following the strike. § 219.67 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, PIFSC must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, PIFSC may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, PIFSC must apply for and obtain a modification of the LOA as described in § 219.68. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination. § 219.68 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 219.67 for the activity identified in § 219.61(a) shall be renewed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented. (b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 219.67 for the activity identified in § 219.61(a) may be modified by OPR under the following circumstances: (1) OPR may utilize an adaptive management process to modify or augment the existing mitigation, monitoring, or reporting measures (after consulting with PIFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in 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 PIFSC’s monitoring reports from the previous year(s). (B) Results from other marine mammal and/or sound research or studies. E:\FR\FM\22MRP2.SGM 22MRP2 Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of VerDate Sep<11>2014 19:40 Mar 19, 2021 Jkt 253001 proposed LOA in the Federal Register and solicit public comment. (2) If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 219.67, an LOA may be modified without prior notice or PO 00000 Frm 00063 Fmt 4701 Sfmt 9990 15359 opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action. § § 219.69—219.70 [Reserved] [FR Doc. 2021–05128 Filed 3–19–21; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\22MRP2.SGM 22MRP2

Agencies

[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
[Proposed Rules]
[Pages 15298-15359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05128]



[[Page 15297]]

Vol. 86

Monday,

No. 53

March 22, 2021

Part II





 Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 219





Taking and Importing Marine Mammals; Taking Marine Mammals Incidental 
to Pacific Islands Fisheries Science Center Fisheries Research; 
Proposed Rule

Federal Register / Vol. 86 , No. 53 / Monday, March 22, 2021 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 210301-0032]
RIN 0648-BG31


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS's Office of Protected Resources (OPR) has received a 
request from NMFS's Pacific Islands Fisheries Science Center (PIFSC) 
for a Letter of Authorization (LOA) to take marine mammals incidental 
to fisheries research conducted in multiple specified geographical 
regions, over the course of five years from the date of issuance. As 
required by the Marine Mammal Protection Act (MMPA), NMFS is proposing 
regulations to govern that take, and requests comments on the proposed 
regulations. NMFS will consider public comments prior to making any 
final decision on the issuance of the requested MMPA authorization and 
agency responses will be summarized in the final notice of our 
decision.

DATES: Comments and information must be received no later than April 
21, 2021.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2021-0026, by the following method:
     Electronic submission: Submit all public comments via the 
Federal e-Rulemaking Portal. Go to www.regulations.gov and enter NOAA-
NMFS-2021-0026 in the Search box. Click on the ``Comment'' icon, 
complete the required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION: 

Availability

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

Purpose and Need for Regulatory Action

    This proposed rule would establish a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take of marine mammals incidental to the PIFSC's fisheries research 
activities in the Hawaiian Archipelago, Mariana Archipelago, American 
Samoa Archipelago, and Western and Central Pacific Ocean.
    We received an application from the PIFSC requesting five-year 
regulations and LOA to take multiple species of marine mammals. Take 
would occur by Level B harassment incidental to the use of active 
acoustic devices, as well as by visual disturbance of pinnipeds, and by 
Level A harassment, serious injury, or mortality incidental to the use 
of fisheries research gear. Please see ``Background'' below for 
definitions of harassment.

Legal Authority for the Proposed Action

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

Summary of Major Provisions Within the Proposed Rule

    Following is a summary of the major provisions of this proposed 
rule regarding PIFSC fisheries research activities. These measures 
include:
     Monitor the sampling areas to detect the presence of 
marine mammals before and during deployment of certain research gear;
     Delay setting or haul in gear if marine mammal interaction 
may occur;
     Haul gear immediately if marine mammals may interact with 
gear; and
     Required implementation of the mitigation strategy known 
as the ``move-on rule mitigation protocol'' which incorporates best 
professional judgment, when necessary during certain research fishing 
operations.

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made, regulations are issued, and notice is 
provided to the public.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.

[[Page 15299]]

    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).

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment.
    Accordingly, NMFS has prepared a draft Environmental Assessment 
(EA; Draft Programmatic Environmental Assessment for Fisheries and 
Ecosystem Research Conducted and Funded by the Pacific Islands 
Fisheries Science Center) to consider the environmental impacts 
associated with the PIFSC's proposed activities as well as the issuance 
of the regulations and subsequent incidental take authorization. A 
notice of availability of a Draft Programmatic EA and request for 
comments was published in the Federal Register on December 4, 2015 (80 
FR 75856). The draft EA is posted online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research. Information in the EA, PIFSC's application, and 
this document collectively provide the environmental information 
related to proposed issuance of these regulations and subsequent 
incidental take authorization for public review and comment. We will 
review all comments submitted in response to this document prior to 
concluding our NEPA process or making a final decision on the request 
for incidental take authorization.

Summary of Request

    On November 30, 2015, we received an adequate and complete 
application from PIFSC requesting authorization to take small numbers 
of marine mammals incidental to fisheries research activities. On 
December 7, 2015 (80 FR 75997), we published a notice of receipt of 
PIFSC's application in the Federal Register, requesting comments and 
information related to the PIFSC request for thirty days. We received 
comments jointly from The Humane Society of the United States and Whale 
and Dolphin Conservation (HSUS/WDC). These comments were considered in 
development of this proposed rule and are available online at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research. While it has been 
multiple years since the PIFSC's application was received, the 
description of the activity remains accurate. Further, science and 
information necessary to evaluate this request that has become 
available since the PIFSC submitted their application has been 
considered and is addressed in this proposed rule.
    PIFSC proposes to conduct fisheries research using trawl gear used 
at various levels in the water column, hook-and-line gear (including 
longlines with multiple hooks, bottomfishing, and trolling), and 
deployed instruments (including various traps). If a marine mammal 
interacts with gear deployed by PIFSC, the outcome could potentially be 
Level A harassment, serious injury (i.e., any injury that will likely 
result in mortality), or mortality. Although any given gear interaction 
could result in an outcome less severe than mortality or serious 
injury, we do not have sufficient information to allow parsing these 
potential outcomes. Therefore, PIFSC presents a pooled estimate of the 
number of potential incidents of gear interaction and, for analytical 
purposes we assume that gear interactions would result in serious 
injury or mortality. PIFSC also uses various active acoustic while 
conducting fisheries research, and use of some of these devices has the 
potential to result in Level B harassment of marine mammals. Level B 
harassment of pinnipeds hauled out may also occur, as a result of 
visual disturbance from vessels conducting PIFSC research.
    PIFSC requests authorization to take individuals of 15 species by 
Level A harassment, serious injury, or mortality (hereafter referred to 
as M/SI) and of 25 species by Level B harassment. The proposed 
regulations would be valid for five years from the date of issuance.

Description of the Specified Activity

Overview

    The Federal Government has a responsibility to conserve and protect 
living marine resources in U.S. waters and has also entered into a 
number of international agreements and treaties related to the 
management of living marine resources in international waters outside 
the United States. NOAA has the primary responsibility for managing 
marine finfish and shellfish species and their habitats, with that 
responsibility delegated within NOAA to NMFS.
    In order to direct and coordinate the collection of scientific 
information needed to make informed fishery management decisions, 
Congress created six regional fisheries science centers, each a 
distinct organizational entity and the scientific focal point within 
NMFS for region-based Federal fisheries-related research. This research 
is aimed at monitoring fish stock recruitment, abundance, survival and 
biological rates, geographic distribution of species and stocks, 
ecosystem process changes, and marine ecological research. The PIFSC is 
the research arm of NMFS in the Pacific Islands region of the United 
States. The PIFSC conducts research and provides scientific advice to 
manage fisheries and conserve protected species in the geographic 
research area described below and provides scientific information to 
support the Western Pacific Fishery Management Council and other 
domestic and international fisheries management organizations.
    The PIFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. PIFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels. Such 
research may also be conducted by cooperating scientists on non-NOAA 
vessels when the PIFSC helps fund the research. The PIFSC proposes to 
administer and conduct approximately 19 survey programs over the five-
year period, within four separate research areas (some survey programs 
are conducted across more than one research area; see Table 1-1 in 
PIFSC's application). The gear types used fall into several categories: 
Towed trawl nets fished at various levels in the water column, hook-
and-line gear (including longline gear), traps, and other instruments. 
Only use of trawl nets, longlines, and deployed instruments and traps 
are likely to result in interaction with marine mammals via 
entanglement. Many of these surveys also use active acoustic devices 
that may result in Level B harassment.

Dates and Duration

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

[[Page 15300]]

research is designed to provide flexibility on a yearly basis in order 
to address issues as they arise. Some cooperative research projects 
last multiple years or may continue with modifications. Other projects 
only last one year and are not continued. Most cooperative research 
projects go through an annual competitive selection process to 
determine which projects should be funded based on proposals developed 
by many independent researchers and fishing industry participants. 
PIFSC survey activity occurs during most months of the year. Trawl 
surveys occur primarily during May through June and September but may 
occur during any month, and hook-and-line surveys generally occur 
during fall.

Specified Geographical Region

    The PIFSC conducts research in the Pacific Islands within four 
research areas: The Hawaiian Archipelago Research Area (HARA), the 
Mariana Archipelago Research Area (MARA), the American Samoa 
Archipelago Research Area (ASARA), and the Western and Central Pacific 
Research Area (WCPRA). The first three research areas are considered to 
extend approximately 24 nautical miles (nmi; 44.5 kilometers (km)) from 
the baseline of the respective archipelagos (i.e., approximately the 
outer limit of the contiguous zone). The WCPRA is considered to include 
the remainder of archipelagic U.S. Exclusive Economic Zone (EEZ) 
waters, the high seas between the archipelagic U.S. EEZ waters, and 
waters around the Pacific remote islands. Please see Figures 1.2 and 
2.1 through 2.4 in the PIFSC application for maps of the four research 
areas. We note here that, while the specified geographical regions 
within which the PIFSC operates may extend outside of the U.S. EEZ, the 
NMFS' authority under the MMPA does not extend into foreign territorial 
waters. For further information about the specified geographical 
regions, please see the descriptions found in Sherman and Hempel (2009) 
and Wilkinson et al. (2009).
    In general, the Pacific region encompassing the PIFSC research 
areas is a complex oceanographic system. The equatorial area has 
relatively steady weather patterns and surface currents, but these can 
change based on ocean-atmospheric conditions. The El Ni[ntilde]o-
Southern Oscillation (ENSO) largely drives the climate in the tropical 
Pacific (Wood et al., 2006), with warm El Ni[ntilde]o or cold La 
Ni[ntilde]a phases, occurring every 2-7 years, impacting equatorial 
upwelling and ecological systems (Barber, 1988; Glynn and Ault, 2000). 
ENSO results in the reduction of trade winds, which reduces the 
intensity of the westward flowing equatorial surface current. When this 
occurs, the eastward-flowing countercurrent dominates oceanic 
circulation and brings warm, low-nutrient waters to eastern margins of 
the Pacific, which in turn can influence marine mammal presence. Trade 
winds play a vital role in dictating sea level, thermal conditions, and 
nutrient distribution (Wytki and Meyers, 1976).
    Habitat throughout the four specified geographical regions include 
seamounts, atolls, reef habitat, and pelagic waters. Oceanic islands 
generally lack an extensive shelf area of relatively shallow water 
extending beyond the shoreline. Instead, most often have a deep reef 
slope, angled between 45 and 90 degrees toward the ocean floor. Species 
compositions along deep reef slopes, banks, and seamounts all can vary 
widely based on depth, light, temperature, and substrate.
    HARA--The Hawaiian Archipelago is one of the most geographically 
isolated island systems in the world, stretching over 2,450 km and 
consisting of eight main volcanic oceanic islands, 124 smaller islands, 
atolls, banks, and numerous seamounts. The region is considered part of 
the Insular Pacific-Hawaiian Large Marine Ecosystem (LME). Due to its 
isolation, the region is characterized overall by relatively low faunal 
diversity but unusually high endemism. The region is divided into the 
inhabited Main Hawaiian Islands (the eight high volcanic islands), 
where many watersheds and nearshore areas have been significantly 
modified, and the uninhabited Northwestern Hawaiian Islands (NWHI), 
with some of the most pristine coral reefs in the world. The 
archipelago is formed by the northwest movement of the Pacific plate 
over a stationary ``hotspot.'' The main islands are younger, higher, 
and more volcanically active, while the NWHI have largely undergone 
submergence and exist as coral atolls, small sand islands, and 
submerged banks stretching to Kure Atoll, the northernmost atoll in the 
world. The major oceanographic influence on the region is the North 
Equatorial Current, which branches along the Hawaiian Ridge into a 
North Hawaiian Ridge Current and gyres in the lee of the islands. The 
region is also seasonally influenced by the Subtropical Front (STF), 
which corresponds to a shallow subtropical countercurrent that 
transects the LME in winter and summer (Kobashi et al., 2006). The 
region has relatively consistent and tropical meteorological and 
oceanographic conditions, with average sea surface temperatures (SST) 
of 23-24[deg]C, and is considered to be of low productivity. The region 
is subject to high wave energy produced from weather systems generated 
off the Aleutian Islands and other areas of the North Pacific, which 
can have major effects on nearshore habitat.
    MARA--The Mariana Archipelago, which is approximately 4,115 km 
west-southwest of Hawaii, includes volcanic and raised limestone 
islands and submerged banks stretching 825 km from Guam Island north to 
Farallon de Pajaros (which is about 550 km south of Iwo Jima). The 
region is divided politically into the Commonwealth of the Northern 
Mariana Islands and the Territory of Guam. The archipelago is flanked 
by the Mariana Trench, which include the deepest water on Earth (11,034 
m) in its southern end near Guam. The archipelago, as well as a chain 
of submerged seamounts located approximately 120 nmi west of the 
Mariana Islands, and the trench were formed approximately 43 million 
years ago by the subduction of the Pacific tectonic plate under the 
Philippine plate. Geological faulting of large areas in the older 
southern portion of the region has created large, oblique shallow-water 
surfaces that have supported extensive reef growth and the development 
of reef flats and lagoons over time. In contrast, the islands in the 
north are younger with more vertical profiles that do not provide the 
basis for extensive reef development. As a result, this spectrum of 
physical conditions creates a suite of different habitats that in turn 
support a variety of biological communities. The primary surface 
current affecting the region is the North Equatorial Current, which 
flows westward through the islands; however, the Subtropical Counter 
Current also influences the Northern Mariana Islands and generally 
flows in a easterly direction. SST ranges from approximately 27-
29[deg]C.
    ASARA--The American portion of the Samoan Archipelago, 
approximately 14[deg] south of the equator, includes five volcanic 
islands and two remote atolls within the U.S. EEZ (the broader Samoan 
Archipelago also includes islands in the independent country of Samoa 
and the French protectorate of Wallis and Futuna). The largest island, 
Tutuila, is nearly bisected by Pago Pago Harbor, the deepest and one of 
the most sheltered embayments in the South Pacific. The primary surface 
current affecting the region is the Equatorial Current, which flows 
westward through the islands. The region experiences southeast trade 
winds that result in frequent rains and a warm tropical climate.

[[Page 15301]]

    WCPRA--In addition to EEZ waters beyond the contiguous zones of the 
regions described above, the WCPRA also includes the high seas and the 
Pacific Remote Islands Area, comprised of Baker Island, Howland Island, 
Jarvis Island, Johnston Atoll, Kingman Reef, Wake Atoll, and Palmyra 
Atoll. Palmyra Atoll, Kingman Reef, and Baker, Howland, and Jarvis 
Islands are all part of the U.S. Fish and Wildlife Service's National 
Wildlife Refuge System.
    Howland and Baker Islands are uninhabited U.S. possessions in the 
Phoenix Island Archipelago. Baker Island is located approximately 21 km 
north of the equator and approximately 2,963 km to the southwest of 
Honolulu. It is a coral-topped seamount surrounded by a narrow fringing 
reef that drops steeply close to shore.
    Jarvis Island, a relatively flat, sandy coral island, is 
approximately 2,092 km south of Honolulu and 1,609 km east of Baker 
Island. Although the westward-flowing South Equatorial Current is the 
primary surface current, the eastward-flowing Equatorial Undercurrent 
drives strong, topographically influenced equatorial upwelling in these 
islands. However, species diversity is much lower than in the Northern 
Line Islands, reflecting the influence of primary currents that 
originate in the species-poor eastern Pacific. Jarvis Island is 
considered part of the Southern Line Islands, but is biogeographically 
more similar to Baker and Howland Islands as its primary influence is 
the South Equatorial Current.
    Johnston Atoll lies approximately 800 km south of French Frigate 
Shoals in the NWHI. Johnston Atoll, a coral reef and lagoon complex on 
a relatively flat, shallow platform, shares biogeographic affinities 
with the Hawaiian Archipelago, with evidence of larval transport 
between the two. Because of faunal affinities and because both occur in 
the oceanic North Pacific Transition Zone Province (Longhurst, 1998), 
the two areas may be considered part of the same ecoregion. Johnston 
Atoll has been used for military purposes since World War II.
    Kingman Reef consists of a series of fringing reefs around a 
central lagoon that does not have any emergent land to support 
vegetation.
    Wake Atoll, comprised of three different islets, is located about 
3,380 km west of Hawaii, at the northern end of the Marshall Islands 
archipelago in the North Pacific Tropical Gyre Province (Longhurst, 
1998). Wake Atoll has primarily been used for military and emergency 
aviation purposes since World War II.
    Palmyra Atoll (1,956 km south of Honolulu) and Kingman Reef (61 km 
northwest of Palmyra) are part of the Northern Line Islands (other 
islands in this archipelago belong to the Republic of Kiribati), and 
are sporadically influenced by the North Equatorial Countercurrent, 
which flows from high biodiversity regions of the western Pacific. 
Palmyra Atoll consists of 52 islets surrounding three central lagoons.

Detailed Description of Activities

    The Federal Government has a trust responsibility to protect living 
marine resources in waters of the United States. These waters extend to 
200 nmi from the shoreline and include the EEZ. The U.S. government has 
also entered into a number of international agreements and treaties 
related to the management of living marine resources in international 
waters outside of the EEZ (i.e., the high seas). To carry out its 
responsibilities over U.S. and international waters, Congress has 
enacted several statutes authorizing certain Federal agencies to 
administer programs to manage and protect living marine resources. 
Among these Federal agencies, NOAA has the primary responsibility for 
protecting marine finfish and shellfish species and their habitats. 
Within NOAA, NMFS has been delegated primary responsibility for the 
science-based management, conservation, and protection of living marine 
resources under statutes including the Magnuson-Stevens Fishery 
Management Act (MSA), MMPA, and the Endangered Species Act (ESA).
    Within NMFS, six regional fisheries science centers direct and 
coordinate the collection of scientific information needed to inform 
fisheries management decisions. Each science center is a distinct 
entity and is the scientific focal point for a particular region. PIFSC 
conducts research and provides scientific advice to manage fisheries 
and conserve protected species in the Pacific Islands. PIFSC provides 
scientific information to support the Western Pacific Fishery 
Management Council and other domestic and international fisheries 
management organizations.
    The PIFSC collects a wide array of information necessary to 
evaluate the status of exploited fishery resources and the marine 
environment. PIFSC scientists conduct fishery-independent research 
onboard NOAA-owned and operated vessels or on chartered vessels, and 
some PIFSC-funded research is conducted by cooperative scientists. The 
PIFSC proposes to administer and conduct approximately 19 survey 
programs over the five-year period (see Table 1.1 in PIFSC's 
application).
    Given the vast geographic scope of the PIFSC region of 
responsibility, not all areas will be visited each year (nor will all 
surveys be conducted each year) within the five-year period the 
proposed regulations and LOA would be effective. Instead, surveys will 
rotate depending on funding, random sampling design, or immediate 
research needs. Research surveys are generally focused on one research 
area every year and that research area is visited every second, third, 
or fourth year. For example, over the course of five years, this 
research cycle might be presented as 
HARA[rtarr]ASARA[rtarr]MARA[rtarr]WCPRA[rtarr]HARA. This cycle 
inherently includes some overlap of any one research area (e.g., Wake 
Atoll in the WCPRA is usually visited when the ship is transiting to 
MARA because it is on the way and makes for the most cost-efficient 
model). Furthermore, a specific survey may be prioritized every year, 
for several years in a row, in one research area because of a defined 
management need. In general, each research area coverage depends on 
funding, ship logistics, weather systems, research priorities, and 
geographic coverage during ship transit. Research is conducted more 
frequently in the HARA due to PIFSC's physical location in the main 
Hawaiian Islands.
    The fishing gear types used by PIFSC fall into several categories: 
towed nets fished at various levels in the water column, hook-and-line 
gear, and traps. The PIFSC also deploys a variety of moored 
instruments. The use of trawl nets and longlines is likely to result in 
interaction with marine mammals. In addition, the PIFSC anticipates 
that its deployment of instruments and traps may result in the 
entanglement of some animals. Many of the proposed surveys also use 
active acoustic devices that may result in Level B harassment.
    Surveys may be conducted aboard NOAA-operated research vessels (R/
V), including the Oscar Elton Sette and Okeanos Explorer, as well as 
the University of Hawai[revaps]i research vessel Ka'imikai-o-Kanoloa 
(KoK) and assorted other small vessels owned by PIFSC. Surveys could 
also be conducted aboard vessels owned and operated by cooperating 
agencies and institutions, or aboard charter vessels.
    In the following discussion, we summarily describe various gear 
types used by PIFSC, with reference to specific fisheries and ecosystem 
research activities conducted by the PIFSC. This is not an exhaustive 
list of gear and/or devices that may be utilized by PIFSC but is 
representative of gear categories and is complete with regard to all 
gears with potential for interaction

[[Page 15302]]

with marine mammals. Additionally, relevant active acoustic devices, 
which are commonly used in PIFSC survey activities, are described 
separately in a subsequent section. Please see Appendix A of PIFSC's 
application for further description, pictures, and diagrams of research 
gear and vessels. Full details regarding planned research activities 
are provided in Table 1.1 of PIFSC's application, with specific gear 
used in association with each research project and full detail 
regarding gear characteristics and usage provided. A summary of PIFSC's 
proposed research programs that may result in take from interaction 
with fishing gear is provided below (Table 1).
    Trawl nets--A trawl is a funnel-shaped net towed behind a boat to 
capture fish. The codend (or bag) is the fine-meshed portion of the net 
most distant from the towing vessel where fish and other organisms 
larger than the mesh size are retained. In contrast to commercial 
fishery operations, which generally use larger mesh to capture 
marketable fish, research trawls often use smaller mesh to enable 
estimates of the size and age distributions of fish in a particular 
area. The body of a trawl net is generally constructed of relatively 
coarse mesh that functions to gather schooling fish so that they can be 
collected in the codend. The opening of the net, called the mouth, is 
extended horizontally by large panels of wide mesh called wings. The 
mouth of the net is held open by hydrodynamic force exerted on the 
trawl doors attached to the wings of the net. As the net is towed 
through the water, the force of the water spreads the trawl doors 
horizontally apart. The top of a net is called the headrope, and the 
bottom is called the footrope. Bottom trawls may use bobbins or roller 
gear to protect the footrope as the net is dragged along the seabed.
    The trawl net is usually deployed over the stern of the vessel and 
attached with two cables (or warps) to winches on the deck of the 
vessel. The cables are played out until the net reaches the fishing 
depth. Trawl vessels typically travel at speeds of 2-5 knots (kt) while 
towing the net for time periods up to several hours. The duration of 
the tow depends on the purpose of the trawl, the catch rate, and the 
target species. At the end of the tow the net is retrieved and the 
contents of the codend are emptied onto the deck. For research 
purposes, the speed and duration of the tow and the characteristics of 
the net are typically standardized to allow meaningful comparisons of 
data collected at different times and locations. Active acoustic 
devices (described later) incorporated into the research vessel and the 
trawl gear monitor the position and status of the net, speed of the 
tow, and other variables important to the research design.
    PIFSC research trawling activities utilize pelagic (or midwater) 
and surface trawls, which are designed to operate at various depths 
within the water column but not to contact the seafloor. Commercial 
midwater trawls may be 75-136 m in width with opening height of 10-20 
m; however, PIFSC uses smaller research trawls. These include a 
modified Cobb midwater trawl, the Isaacs-Kidd (IK) trawl, and various 
other small-mesh nets used as surface trawls. The Cobb trawl is 
generally used to target snapper and grouper species within the 0-250 m 
depth range, and has a mouth opening of 686 m\2\. The IK trawl is used 
to collect midwater or surface biological specimens larger than those 
taken by standard plankton nets. The PIFSC uses two sizes of IK trawls 
for various research purposes, a 6-ft (1.8-m) wide model and a 10-ft 
(3.0-m) wide model. These nets may be towed either at the surface of 
the water or at various midwater depths depending on research protocols 
or where acoustic signals indicate the presence of study organisms. Tow 
durations are typically 30-60 min for small-mesh surface tows, 60 min 
for IK surface tows, or 60-240 min for midwater tows, with midwater tow 
depths varied during a tow to target fish at different water depths. 
PIFSC trawls are typically towed at 2.5-3.5 kt.
    Longline--Longline vessels fish with baited hooks attached to a 
mainline. The length of the longline and the number of hooks depend on 
the species targeted, the size of the vessel, and the purpose of the 
fishing activity. Pelagic longlines, which fish near the surface with 
the use of floats, may be deployed in such a way as to fish at 
different depths in the water column. For example, deep-set longlines 
targeting tuna may have target depths greater than 100 m, while a 
shallow-set longline targeting swordfish is set at depths shallower 
than 100 m (see Figure A-7 of PIFSC's application). Hooks are attached 
to the mainline by another thinner line called a gangion or branch 
line. The length of the gangion and the distance between gangions 
depends on the purpose of the fishing activity. PIFSC uses pelagic 
longline gear, which is deployed near the surface of the water, with 
buoys attached to the mainline to provide flotation and keep the baited 
hooks suspended in the water. Radar reflectors, radio transmitters, and 
light sources are often used to help fishers determine the location of 
the longline gear prior to retrieval.
    A commercial longline can be miles long and have thousands of hooks 
attached. Although longlines used for research surveys are often 
shorter, the PIFSC uses some commercial-scale longlines, i.e., 600 to 
2,000 hooks attached to a mainline up to 60 miles in length. There are 
no internationally-recognized standard measurements for hook size, and 
a given size may be inconsistent between manufacturers. Larger hooks, 
as are used in longlining, are referenced by increasing whole numbers 
followed by a slash and a zero as size increases (e.g., \1/0\ up to 20/
0). The numbers represent relative sizes, normally associated with the 
gap (the distance from the point tip to the shank).
    The time period between deployment and retrieval of the longline 
gear is the soak time. Soak time is an important parameter for 
calculating fishing effort. For commercial fisheries the goal is to 
optimize the soak time in order to maximize catch of the target species 
while minimizing the bycatch rate and minimizing damage to target 
species that may result from predation by sharks or other predators. 
PIFSC pelagic longline soak times range from 600-1,800 min.
    Other hook and line gear--Hook and line is a general term used for 
a range of fishing methods that employ short fishing lines with hooks 
in one form or another (as opposed to longlines). This gear is similar 
to methods commonly used by recreational fishers and may generally 
include handlines, hand reels, powered reels, rod/pole and line, drop 
lines, and troll lines, all using bait or lures in various ways to 
attract target species. The gear used in PIFSC bottomfish surveys 
consists of a main line with a 2-4 kg weight attached to the end. 
Several 40-60 cm sidelines with circle hooks are attached above the 
weight at 0.5-1 m intervals. A chum bag containing chopped fish or 
squid may be suspended above the highest of these hooks. Dead fish and 
bait would not be discarded from the vessel while actively fishing and 
would only be discarded after gear is retrieved and immediately before 
the vessel leaves the sampling location for a new area. The gear is 
retrieved using hydraulic or electric reels after several fish are 
hooked. Another hook-and-line fishing method is trolling where multiple 
lines are towed behind a boat. Trolling gear used by the PIFSC have 
four troll lines each with 1-2 baited hooks towed at 4-6 kt.
    Other nets--PIFSC surveys utilize various small, fine-mesh, towed 
nets and neuston nets designed to sample

[[Page 15303]]

small fish and pelagic invertebrates. These nets can be broadly 
categorized as small trawls (which are separated from large trawl nets 
due to small trawls' discountable potential for interaction with marine 
mammals; see ``Potential Effects of the Specified Activity on Marine 
Mammals and their Habitat'') and plankton nets.
    1. Neuston nets are used to collect zooplankton that live in the 
top few centimeters of the sea surface (the neuston layer). These nets 
have a rectangular opening usually two or three times as wide as deep 
(e.g., one meter by 0.5 meters or 60 centimeters by 20 centimeters). 
Neuston nets sometimes use hollow piping for construction of the net 
frame to aid in flotation. They are generally towed half submerged at 
1-2 kt from the side of a vessel on a boom to avoid the ship's wake.
    2. Ring nets are used to capture plankton with vertical tows. These 
nets consist of a circular frame and a cone-shaped net with a 
collection jar at the codend. The net, attached to a labeled dropline, 
is lowered into the water while maintaining the net's vertical 
position. When the desired depth is reached, the net is pulled straight 
up through the water column to collect the sample. The most common 
zooplankton ring net is one meter in diameter with 0.333 millimeter 
mesh openings, also known as a `meter net.'
    3. Plankton drop nets are small handheld nets made up of fine mesh 
attached to a metal hoop with a long rope attached for retrieval. These 
nets are used for stationary sampling of the surrounding water.
    4. Bongo nets are towed through the water at an oblique angle to 
sample plankton over a range of depths. Similar to ring nets, these 
nets typically have a cylindrical section coupled to a conical portion 
that tapers to a detachable codend constructed of nylon mesh. During 
each plankton tow, the bongo nets are deployed to depth and are then 
retrieved at a controlled rate so that the volume of water sampled is 
uniform across the range of depths. A collecting bucket, attached to 
the codend of the net, is used to contain the plankton sample. Some 
bongo nets can be opened and closed using remote control to enable the 
collection of samples from particular depth ranges. A group of depth-
specific bongo net samples can be used to establish the vertical 
distribution of zooplankton species in the water column at a site. 
Bongo nets are generally used to collect zooplankton for research 
purposes and are not used for commercial harvest.
    Traps--Traps are submerged, three-dimensional devices, often 
baited, that permit organisms to enter the enclosure but make escape 
extremely difficult or impossible. Most traps are attached by a rope to 
a buoy on the surface of the water and may be deployed in series. The 
trap entrance can be regulated to control the maximum size of animal 
that can enter, and the size of the mesh in the body of the trap can 
regulate the minimum size that is retained. In general, the species 
caught depends on the type and characteristics of the pot or trap used. 
PIFSC uses lobster traps, crab traps, and other traps of various sizes.
    Lobster traps are deployed in the NWHI to study the life history 
and population dynamics of lobster. The lobster traps consist of one 
string per site, with 8 or 20 traps per string, separated by 20 fathoms 
of ground line. The traps are deployed within two separate depth 
regimes: 10-20 or 21-35 fathoms.
    Kona crab traps are nylon, with meshing spaced 2\1/2\ inches apart 
attached to a wire ring with squid or fish bait set in the middle. Up 
to ten nets can be tied together with a buoy on the end net for 
retrieval. They are left for approximately 20 min.
    Settlement traps are cylindrical with dimensions up to 3 m long and 
2 m diameter. The trap frame is composed of semi-rigid plastic mesh of 
up to 5 cm mesh size. Folded plastic of up to 10 cm mesh is stuffed 
inside as settlement habitat, and cylinder ends are then pinched shut. 
The traps are clipped throughout the water column onto a vertical line 
anchored on bottom at up to 400 m, supported by a surface float.
    Conductivity, temperature, and depth profilers--A CTD profiler is 
the primary research tool for determining chemical and physical 
properties of seawater. A shipboard CTD is made up of a set of small 
probes attached to a large (1-2 m diameter) metal rosette wheel. The 
rosette is lowered through the water column on a cable, and CTD data 
are observed in real time via a conducting cable connecting the CTD to 
a computer on the ship. The rosette also holds a series of sampling 
bottles that can be triggered to close at different depths in order to 
collect a suite of water samples that can be used to determine 
additional properties of the water over the depth of the CTD cast. A 
standard CTD cast, depending on water depth, requires two to five hours 
to complete. The data from a suite of samples collected at different 
depths are often called a depth profile. Depth profiles for different 
variables can be compared in order to glean information about physical, 
chemical, and biological processes occurring in the water column. 
Salinity, temperature, and depth data measured by the CTD instrument 
are essential for characterization of seawater properties.
    Expendable bathythermographs (XBT)--PIFSC also uses XBTs to provide 
ocean temperature versus depth profiles. A standard XBT system consists 
of an expendable probe, a data processing/recording system, and a 
launcher. An electrical connection between the probe and the processor/
recorder is made when the canister containing the probe is placed 
within the launcher and the launcher breech door is closed. Following 
launch into the water, wire de-reels from the probe as it descends 
vertically through the water. Simultaneously, wire de-reels from a 
spool within the probe canister, compensating for any movement of the 
ship and allowing the probe to freefall from the sea surface unaffected 
by ship motion or sea state.
    Remotely operated vehicles (ROV)--ROVs are used to count fish and 
shellfish, photograph fish for identification, and provide views of the 
bottom for habitat-type classification studies via still and video 
camera images. Precise georeferenced data from ROV platforms also 
enables SCUBA divers to utilize bottom time more effectively for 
collection of brood stock and other specimens.
    PIFSC also uses various other platforms, including gliders, towed 
systems, and seafloor or moored packages, to conduct passive acoustic 
monitoring, collect oceanographic data, and collect photographic/video 
data, among other things. Many such deployments require the use of 
mooring lines, including the Bottom Camera system (BotCam), Modular 
Underwater Survey System (MOUSS), Baited Remote Underwater Video System 
(BRUVS), Underwater Sound Playback System, and High-Frequency Acoustic 
Recording (HARP) package.
    Table 1.1 of the PIFSC's application provide detailed information 
of all surveys planned by PIFSC; full detail is not repeated here. 
Below, we provide brief summaries of a selection of surveys using gear 
expected to have potential for marine mammal interaction (Table 1). 
Many of these surveys also use small trawls, plankton nets, gear 
deployed by hand by divers, and/or other gear; however, only gear with 
likely potential for marine mammal interaction is described. These 
summaries illustrate projected annual survey effort in the different 
research areas for those gears that we believe present the potential 
for marine mammal interaction but are intended only to provide a sense 
of the level of effort, and actual level of effort may vary from year 
to year. Gear specifications vary; please see Table 1.1

[[Page 15304]]

of PIFSC's application for descriptions of representative equipment. 
All surveys generally may occur every year in the HARA, but 
approximately once every three years in the MARA, ASARA, and WCPRA. 
Figures 2.1-2.4 of PIFSC's application illustrate locations of past 
survey effort in each of the four research areas.

[[Page 15305]]



                     Table 1--Summary Description of PIFSC Fisheries and Ecosystem Research Activities in the Pacific Islands Region
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Season, frequency &                                           Total number of
          Survey name             Survey description    General area of    yearly days at sea       Gear used         Gear details          samples
                                                           operation             (DAS)                                                   (approximated)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sampling Pelagic Stages of       Results of sampling   HARA,       Year-round   Cobb        Tow         40 tows
 Insular Fish Species.            inform life          MARA, ASARA,        HARA: up     trawl (midwater     speed: 2.5-3.5 kt.  per survey per
                                  history and stock    WCPRA.              to 20 Days at Sea    trawl) or Isaacs-   Duration:   year.
                                  structure studies    3-200 nmi   (DAS).               Kidd 10-foot (ft)   60-240 minutes     .................
                                  for pelagic larval   from shore.         MARA,        net (midwater       (min).             .................
                                  and juvenile stage                       ASARA, WCPRA: up     trawl).             Depth:     .................
                                  specimens of                             to 30 DAS.          ..................   deployed at        .................
                                  insular fish.                           approximately once   ..................   various depths     .................
                                  Additional habitat                       in research area    ..................   during same tow     40 tows
                                  information is                           every three years.   Isaacs-     to target fish at   per survey per
                                  also collected.                          Midwater     Kidd 6-ft net       different water     year.
                                  Target species are                       trawls are           (surface trawl).    depths, usually
                                  snapper, grouper,                        conducted at         Dip net     to 250 m.
                                  and coral reef                           night, surface       (surface).          Tow
                                  fish species                             trawls are           Trawl       speed: 2.5-3.5
                                  within the 0-175 m                       conducted day and    mounted OES         kts.
                                  depth range..                            night.               Netmind             Duration:
                                                                                                (midwater).         60 min.
                                                                                                                    Depth:
                                                                                                                    Surface.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spawning Dynamics of Highly      Early life history    HARA,       Year-        Isaacs-     Tow         140 tows
 Migratory Species.               studies provide      MARA, ASARA,        round..              Kidd 6-foot net     speed: 2.5-3.5      per survey per
                                  larval stages for    WCPRA.              HARA: up     (surface) Neuston   kts.                year
                                  population genetic   1-25 nmi    to 25 DAS..          tows (surface) 1-   Duration:   140 tows
                                  studies and          from shore.         MARA,        m ring net          60 min.             per survey per
                                  include the                              ASARA, WCPRA: up     (surface).          Depth:      year.
                                  characterization                         to 25 DAS                                Surface.
                                  of habitat for                           approximately once                       Tow
                                  early life stages                        in research area                         Speed: 2.5-3.5
                                  of pelagic                               every three years..                      kts.
                                  species. Egg and                         Surface                          Duration:
                                  larval collections                       trawls are                               30-60 min.
                                  are taken in                             conducted day and                        Depth: 0-
                                  surface waters                           night..                                  3 m.
                                  using a variety of
                                  plankton gear,
                                  primarily Isaac-
                                  Kidd 6-foot
                                  surface trawl, but
                                  also sometimes
                                  including 1-meter
                                  ring net and
                                  surface neuston
                                  net..
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cetacean Ecology Assessment....  Survey transects      HARA,       Variable     Cobb        Tow         180 tows
                                  conducted in         MARA, ASARA,        timing, depending    trawl (midwater     speed: 3 kts.       total per year.
                                  conjunction with     WCPRA.              on ship              trawl).             Duration:   180 tows
                                  cetacean visual                          availability, up     Small-      60-240 min.         per research
                                  and acoustic                             to 180 DAS.          mesh towed net      Tow         area.
                                  surveys within the                       Usually      (surface trawl).    Speed: 2.5-3.5
                                  Hawai`i EEZ to                           conducted in non-                        kts.
                                  develop ecosystem                        winter months.                           Duration:
                                  models for                               Midwater                         30-60 min.
                                  cetaceans.                               trawls are
                                  Sampling also                            conducted at
                                  includes active                          night, surface
                                  acoustics to                             trawls are
                                  determine relative                       conducted day and
                                  biomass density of                       night.
                                  sound scattering
                                  layers; trawls to
                                  sample within the
                                  scattering layers;
                                  cetacean
                                  observations;
                                  surface and water
                                  column
                                  oceanographic
                                  measurements and
                                  water sample
                                  collection..
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Debris Research and       Surface and           HARA,       Annually,    Neuston,    Tow         Up to
 Removal.                         midwater plankton    MARA, ASARA,        or on an as-         or similar,         Speed: varied.      250 tows per
                                  tows to quantify     WCPRA.              needed basis, up     plankton nets       Duration:   survey per year.
                                  floating                                 to 30 DAS.           surface towed       <1 hour.
                                  microplastic in                          Surface      alongside ship
                                  seawater.                                trawls are           and/or small
                                                                           conducted day and    boats.
                                                                           night.
                                                                           UAS are
                                                                           conducted during
                                                                           the day or night.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 15306]]

 
Insular Fish Life History        Provide size ranges   HARA,       HARA: July-  Hook-and-   Hand        HARA:
 Survey and Studies.              of deepwater         MARA, ASARA,        September, up to     line.               line, electric or   350 operations
                                  eteline snappers,    WCPRA.              15 DAS/yr.                               hydraulic reel.     per year.
                                  groupers, and        0.2-5 nmi   Other                            Each        Other
                                  large carangids to   from shore.         areas: Year-round,                       operation           areas: 240
                                  determine sex-                           up to 30 DAS for                         involves 1-3        operations per
                                  specific length-at-                      each research area                       lines with.4-6      year for each
                                  age growth curves,                       once every three                         hooks per line;     research area.
                                  longevity                                years.                                   soaked 1-30 min.
                                  estimates, length                        Day and                          Squid
                                  and age at 50%                           night.                                   bait on circle
                                  reproductive                                                                      hooks (typically
                                  maturity within                                                                   10/0 to 12/0).
                                  the Bottomfish
                                  Management Unit
                                  Species (BMUS) in
                                  Hawai`i and the
                                  other Pacific
                                  Islands regions.
                                  Specimens are
                                  collected in the
                                  field and sampled
                                  at markets..
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pelagic Troll and Handline       Surveys would be      HARA,       Variable,    Pelagic     Troll       A total
 Sampling.                        conducted to         MARA, ASARA.        up to 14 DAS Day     troll and           fishing with up     of up to 2
                                  collect life         0 to 24     and night.           handline (hook      to 4 troll lines    operations of
                                  history and          nmi from shore                           and line) fishing.  each with 1-2       any of these
                                  molecular samples    (excluding any                                               baited hooks or 1-  gear types per
                                  from pelagic         special resource                                             2 hook trolling     DAS, totaling 28
                                  species. Other       areas).                                                      lures at 4-10 kts.  operations (all
                                  target species                                                                    Pelagic     types combined)
                                  would be tagged-                                                                  handline (hook-     for the survey.
                                  and-released.                                                                     and-line) fishing
                                  Different tags                                                                    at 10-100 m
                                  would used                                                                        midwater depths,
                                  depending upon the                                                                with hand,
                                  species and study,                                                                electric, or
                                  but could include:                                                                hydraulic reels.
                                  passive, archival,                                                                Up to 4 lines.
                                  ultrasonic, and                                                                   Each line is
                                  satellite tags..                                                                  baited with 4
                                                                                                                    hooks.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Insular fish Abundance           Comparison of         HARA,       Variable,    Hook-and-   Hand,       HARA:
 Estimation Comparison Surveys.   fishery-             MARA, ASARA,        up to 30 DAS per     line.               electric,           7,680 operations
                                  independent          WCPRA.              research area per                        hydraulic reels..   per year.
                                  methods to survey                        year.                                    Each        MARA:
                                  bottomfish                               HARA                             vessel fishes 2     1.920 every 3rd
                                  assemblages in the                       surveyed annually,                       lines. Each line    year (average)
                                  Main Hawaiian                            ASARA, WCPRA                             is baited with 4-   640 operations
                                  Islands:                                 surveyed every 3                         6 hooks..           per year).
                                  coordinated                              years.                                   1-30        ASARA:
                                  research between                         Sampling                         minutes per         1,920 every 3rd
                                  PIFSC and various                        occurs day and                           fishing             year (average e
                                  partners Day and                         night.                                   operation..         640 per year).
                                  night surveys are                                                                                     WCPRA:
                                  used to develop                                                                                       1,920 every 3rd
                                  fishery-                                                                                              year (average
                                  independent                                                                                           640 per year).
                                  methods to assess
                                  stocks of
                                  economically
                                  important insular
                                  fish.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kona Integrated Ecosystem        Survey transects      HARA; 2-    Variable     Cobb        Tow         15-20
 Assessment Cruise.               conducted off the    10 nmi from shore.  timing, depending    trawl (midwater     speed: 3 kts.       tows/yr.
                                  Kona coast and                           on ship              trawl).             Duration:  .................
                                  Kohala Shelf area                        availability, up     Hook-and-   60-240 min.         No more
                                  to develop                               to 10 DAS.           line.               Electric    than 50 hours of
                                  ecosystem models                         Day and                          or hydraulic        effort.
                                  for coral reefs,                         night.                                   reel: Each         
                                  socioeconomic                                                                     operation           Approximately 10
                                  indicators,                                                                       involves 1-3        mesopelagic
                                  circulation                                                                       lines, with squid   squid caught per
                                  patterns, larval                                                                  lures, soaked 10-   yr.
                                  fish transport and                                                                60 min at depths
                                  settlement.                                                                       between 200m to
                                  Sampling includes                                                                 600m.
                                  active acoustics
                                  to determine
                                  relative biomass
                                  density of sound
                                  scattering layers;
                                  trawls to sample
                                  within the
                                  scattering layers;
                                  cetacean
                                  observations;
                                  surface and water
                                  column
                                  oceanographic
                                  measurements and
                                  water sample
                                  collection..
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 15307]]

 
Sampling of Juvenile-stage       Sampling activity     HARA.....   July-        Trap                    10 traps
 Bottomfish via Settlement        to capture           0.2-5 nmi   September.           (settlement).       Cylindrical traps   per line set; up
 Traps.                           juvenile recruits    from shore.         Up to 25                         are clipped         to 4 line sets
                                  of eteline                               DAS Day and night.                       throughout the      soaked per day,
                                  snappers and                                                                      water column onto   from overnight
                                  grouper that have                                                                 a vertical line     up to 3 days.
                                  recently                                                                          anchored on         Up to
                                  transitioned from                                                                 bottom at up to     100 lines of
                                  the pelagic to                                                                    400 m, supported    traps set per
                                  demersal habitat.                                                                 by a surface        yr.
                                  Target species                                                                    float.              Catch of
                                  include Deep-7                                                                                        2500 juvenile
                                  bottomfish and the                                                                                    stage bottomfish
                                  settlement                                                                                            per year.
                                  habitats these
                                  stages are
                                  associated with.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mariana Resource Survey........  Sampling activity     MARA.....   May--        Large-      Tow         15-20
                                  to quantify          0-25 nmi    August Up to 102     mesh Cobb           speed: 3 kts.       tows per survey
                                  baseline             from shore.         DAS (once every      midwater trawl      Duration:   per year.
                                  bottomfish and                           three years).        Isaacs-Kidd         60-240 min         .................
                                  reef fish                                Midwater     midwater trawl.     trawls; 2 tows     .................
                                  resources in the                         trawls are          ..................   per night.         .................
                                  Mariana                                  conducted at        ..................   Depth(s):  .................
                                  Archipelago                              night, surface      ..................   deployed at        .................
                                  Research Area.                           trawls are          ..................   various depths     .................
                                  Various artificial                       conducted day and   ..................   during same tow     15-20
                                  habitat designs,                         night.               Small-      to target fish at   tows (any
                                  Cobb trawl and IK                        In-water     mesh surface        different water     combination of
                                  trawls will be                           activities are       trawl nets          depths, usually     the nets
                                  developed,                               conducted during     (Isaacs-Kidd,       between 100 m and   described).
                                  enclosed in mesh                         the day. All         neuston, ring,      200m.               25 gear
                                  used to retain                           others are day and   bongo nets).        Tow         sets per cruise.
                                  captures, and                            night.               Traps       speed: 3 kts.       Up to
                                  evaluated collect                                             (Kona crab,         Duration:   400 strings set
                                  pelagic-stage                                                 enclosure).         up to 60 min.       per year.
                                  specimens of reef                                             Hook-and-   Depth: 0-   1000
                                  fish and                                                      line.               200 m.              sets per survey.
                                  bottomfish                                                                        Up to ten
                                  species. Traps                                                                    Kona crab traps
                                  will be primarily                                                                 can be tied
                                  set in mesophotic                                                                 together with a
                                  habitats (50-200 m                                                                buoy on the end
                                  depths) and in the                                                                net for
                                  quality of each                                                                   retrieval. They
                                  habitat for recent                                                                are left for
                                  recruits. deep-                                                                   approximately 20
                                  slope bottomfish                                                                  min. Two strings
                                  habitats (200-500m                                                                of six enclosure
                                  depths).                                                                          traps each would
                                                                                                                    be deployed at
                                                                                                                    night on sand,
                                                                                                                    rubble and
                                                                                                                    pavement (i.e.
                                                                                                                    not coral)
                                                                                                                    substrate, and
                                                                                                                    retrieved the
                                                                                                                    next morning.
                                                                                                                    Up to 20
                                                                                                                    traps per string,
                                                                                                                    separated by 20
                                                                                                                    fathoms of ground
                                                                                                                    line; two depths
                                                                                                                    10-35 fathoms.
                                                                                                                    Up to 2
                                                                                                                    strings per DAS.
                                                                                                                    Electric
                                                                                                                    or hydraulic
                                                                                                                    reel: each
                                                                                                                    operation
                                                                                                                    involves 1-3
                                                                                                                    lines, with squid
                                                                                                                    lures, soaked 10-
                                                                                                                    60 min at depths
                                                                                                                    between 200 m to
                                                                                                                    600 m.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pelagic Longline, Troll, and     Investigate           HARA.....   21 DAS....   Pelagic     Soak        Up to 21
 Handline Gear Trials.            effectiveness of     Longline    Day and      longline.           time: 600-1800      longline
                                  various types of     fishing would       night.              ..................   min.                operations per
                                  hooks, hook          occur outside of:                        Trolling,  ..................   year.
                                  guards, gear         (1) All longline                         and handline        Troll       Up to 21
                                  configurations, or   exclusions zones                         (hook-and-line).    fishing with up     troll or
                                  other modified       in the Hawai`i                                               to 4 troll lines    handline
                                  fishing practices    EEZ; (2) the                                                 each with 1-2       (combined)
                                  for reducing the     Insular False                                                baited hooks or 1-  operations per
                                  bycatch of non-      Killer Whale                                                 2 hook troll        year.
                                  target species and   range, and (3)                                               lures at 4-10 kts.
                                  retaining or         all special                                                  Pelagic
                                  increasing target    resource areas.                                              handline (hook-
                                  catch.               Longline                                             and-line) fishing
                                                       fishing would                                                at 10-100 m
                                                       occur up to                                                  midwater depths,
                                                       approximately 500                                            with hand,
                                                       nmi from the                                                 electric, or
                                                       shores of the                                                hydraulic reels.
                                                       Hawai`i                                                      Up to 4 lines.
                                                       Archipelago.                                                 Each line is
                                                       Trolling                                             baited with 4
                                                       and handline                                                 hooks.
                                                       occurs 25 to 500                                             Up to 4
                                                       nmi from shore                                               hrs per troll or
                                                       (excluding any                                               handline
                                                       special resource                                             operation.
                                                       areas).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 15308]]

 
Pelagic Oceanographic Cruise...  Investigate           WCPRA....   Annual       Large-      Tow         20 tows
                                  physical (e.g.,      25-1000     (season variable)    mesh Cobb           speed: 3 kts.       per year,
                                  fronts) and          nmi from shore in   Up to 30 DAS.        midwater trawl.     Duration:   alternating with
                                  biological           any direction.      Midwater    ..................   60-240 min.         Kona IEA cruise
                                  features that                            trawls are          ..................  ..................   4 liters of
                                  define the                               conducted at         Plankton   ..................   micronekton per
                                  habitats for                             night, surface       drop net            1 meter     tow.
                                  important                                trawls are           (stationary         diameter plankton   20 drops
                                  commercial and                           conducted day and    surface sampling).  drop net would be   per year
                                  protected species                        night.              ..................   deployed down to    (collections
                                  of the North                             All other    Small-      100 m.              would be less
                                  Pacific Ocean.                           activities are       mesh surface and   ..................   than one liter
                                  Sampling also                            conducted day and    midwater trawl      Duration:   of plankton).
                                  includes active                          night.               nets (Isaacs-       up to 60 min.       15-20
                                  acoustics to                                                  Kidd, neuston,      Depth: 0-   tows (any
                                  determine relative                                            ring, bongo nets).  200 m.              combination of
                                  biomass density of                                                                                    the nets
                                  sound scattering                                                                                      described) <1
                                  layers; trawls to                                                                                     liter of
                                  sample within the                                                                                     organisms per
                                  scattering layers;                                                                                    tow.
                                  surface and water
                                  column
                                  oceanographic
                                  measurements and
                                  water sample
                                  collection.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lagoon Ecosystem                 Measure the           WCPRA....   Up to 14     Divers      SCUBA,      10 dives
 Characterization.                abundance and                            DAS.                 with hand net or    snorkel, 12-inch    per survey.
                                  distribution of                          Conducted    speargun.           diameter small      10 fin
                                  reef fish                                during the day.                          mesh hand net.      clips collected
                                  (including                                                                                            for genetic
                                  juvenile bumphead                                                                                     analyses.
                                  parrotfish).
                                                                                                Hook-and-   Standard    1-30
                                                                                                line.               rod and reel        minute casts.
                                                                                                                    using lures or      60 casts
                                                                                                                    fish bait from      per survey.
                                                                                                                    shoreline or
                                                                                                                    small boat.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 15309]]

    Description of Active Acoustic Sound Sources--This section contains 
a brief technical background on sound, the characteristics of certain 
sound types, and on metrics used in this proposal inasmuch as the 
information is relevant to PIFSC's specified activity and to an 
understanding of the potential effects of the specified activity on 
marine mammals found later in this document. We also describe the 
active acoustic devices used by PIFSC. For general information on sound 
and its interaction with the marine environment, please see, e.g., Au 
and Hastings (2008); Richardson et al. (1995); Urick (1983).
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks or corresponding points of a sound wave 
(length of one cycle). Higher frequency sounds have shorter wavelengths 
than lower frequency sounds, and typically attenuate (decrease) more 
rapidly, except in certain cases in shallower water. Amplitude is the 
height of the sound pressure wave or the ``loudness'' of a sound and is 
typically described using the relative unit of the decibel (dB). A 
sound pressure level (SPL) in dB is described as the ratio between a 
measured pressure and a reference pressure (for underwater sound, this 
is 1 microPascal ([mu]Pa)) and is a logarithmic unit that accounts for 
large variations in amplitude; therefore, a relatively small change in 
dB corresponds to large changes in sound pressure. The source level 
(SL) represents the SPL referenced at a distance of 1 m from the source 
(referenced to 1 [mu]Pa), while the received level is the SPL at the 
listener's position (referenced to 1 [mu]Pa).
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average. Root mean square accounts for both positive 
and negative values; squaring the pressures makes all values positive 
so that they may be accounted for in the summation of pressure levels. 
This measurement is often used in the context of discussing behavioral 
effects, in part because behavioral effects, which often result from 
auditory cues, may be better expressed through averaged units than by 
peak pressures. Peak sound pressure (also referred to as zero-to-peak 
sound pressure or 0-pk) is the maximum instantaneous sound pressure 
measurable in the water at a specified distance from the source and is 
represented in the same units as the rms sound pressure (dB re 1 
[mu]Pa).
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-second) 
represents the total energy in a stated frequency band over a stated 
time interval or event, and considers both intensity and duration of 
exposure. The per-pulse SEL is calculated over the time window 
containing the entire pulse (i.e., 100 percent of the acoustic energy). 
SEL is a cumulative metric; it can be accumulated over a single pulse, 
or calculated over periods containing multiple pulses. Cumulative SEL 
represents the total energy accumulated by a receiver over a defined 
time window or during an event.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner similar to ripples on the surface of a pond and may be either 
directed in a beam or beams (as for the sources considered here) or may 
radiate in all directions (omnidirectional sources). The compressions 
and decompressions associated with sound waves are detected as changes 
in pressure by aquatic life and man-made sound receptors such as 
hydrophones.
    Sounds are often considered to fall into one of two general types: 
Pulsed and non-pulsed (defined in the following paragraphs). The 
distinction between these two sound types is important because they 
have differing potential to cause physical effects, particularly with 
regard to hearing (e.g., Ward, 1997 in Southall et al., 2007). Please 
see Southall et al. (2007) for an in-depth discussion of these 
concepts. The distinction between these two sound types is not always 
obvious, as certain signals share properties of both pulsed and non-
pulsed sounds. A signal near a source could be categorized as a pulse; 
but, due to propagation effects as it moves farther from the source, 
the signal duration becomes longer (e.g., Greene and Richardson, 1988). 
Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic booms, 
impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features. Non-pulsed 
sounds can be tonal, narrowband, or broadband, brief or prolonged, and 
may be either continuous or intermittent (ANSI, 1995; NIOSH, 1998). 
Some of these non-pulsed sounds can be transient signals of short 
duration but without the essential properties of pulses (e.g., rapid 
rise time). Examples of non-pulsed sounds include those produced by 
vessels, aircraft, machinery operations such as drilling or dredging, 
vibratory pile driving, and active sonar systems. The duration of such 
sounds, as received at a distance, can be greatly extended in a highly 
reverberant environment. Non-pulsed sounds typically have less capacity 
to induce physical injury as compared with pulsed sounds. All active 
acoustic sources used by PIFSC produce non-pulsed intermittent sound.
    A wide range of active acoustic sources are used in PIFSC fisheries 
surveys for remotely sensing bathymetric, oceanographic, and biological 
features of the environment. Most of these sources involve relatively 
high frequency, directional, and brief repeated signals tuned to 
provide sufficient focus and resolution on specific objects. PIFSC also 
uses passive listening sensors (i.e., remotely and passively detecting 
sound rather than producing it), which do not have the potential to 
impact marine mammals. PIFSC active acoustic sources include various 
echosounders (e.g., multibeam systems), scientific sonar systems, 
positional sonars (e.g., net sounders for determining trawl position), 
and environmental sensors (e.g., current profilers).
    Mid- and high-frequency underwater acoustic sources typically used 
for scientific purposes operate by creating an oscillatory overpressure 
through rapid vibration of a surface, using either electromagnetic 
forces or the piezoelectric effect of some materials. A vibratory 
source based on the piezoelectric effect is commonly referred to as a 
transducer. Transducers are usually designed to excite an acoustic wave 
of a specific frequency, often in a highly directive beam, with the 
directional capability increasing with operating frequency. The main 
parameter characterizing directivity is the beam width, defined as the 
angle subtended by diametrically opposite ``half power'' (-3 dB) points 
of the main lobe. For different transducers at a single operating 
frequency the beam

[[Page 15310]]

width can vary from 180[deg] (almost omnidirectional) to only a few 
degrees. Transducers are usually produced with either circular or 
rectangular active surfaces. For circular transducers, the beam width 
in the horizontal plane (assuming a downward pointing main beam) is 
equal in all directions, whereas rectangular transducers produce more 
complex beam patterns with variable beam width in the horizontal plane.
    The types of active sources employed in fisheries acoustic research 
and monitoring, based largely on their relatively high operating 
frequencies and other output characteristics (e.g., signal duration, 
directivity), should be considered to have very low potential to cause 
effects to marine mammals that would rise to the level of a ``take,'' 
as defined by the MMPA. Acoustic sources operating at high output 
frequencies (>180 kHz) that are outside the known functional hearing 
capability of any marine mammal are unlikely to be detected by marine 
mammals. Although it is possible that these systems may produce 
subharmonics at lower frequencies, this component of acoustic output 
would also be at significantly lower SPLs. While the production of 
subharmonics can occur during actual operations, the phenomenon may be 
the result of issues with the system or its installation on a vessel 
rather than an issue that is inherent to the output of the system. Many 
of these sources also generally have short duration signals and highly 
directional beam patterns, meaning that any individual marine mammal 
would be unlikely to even receive a signal that would likely be 
inaudible.
    Acoustic sources present on most PIFSC fishery research vessels 
include a variety of single, dual, and multi-beam echosounders (many 
with a variety of modes), sources used to determine the orientation of 
trawl nets, and several current profilers with lower output frequencies 
that overlap with hearing ranges of certain marine mammals (e.g., 30-
180 kHz). However, while likely potentially audible to certain species, 
these sources also have generally short ping durations and are 
typically focused (highly directional) to serve their intended purpose 
of mapping specific objects, depths, or environmental features. These 
characteristics reduce the likelihood of an animal receiving or 
perceiving the signal. A number of these sources, particularly those 
with relatively lower output frequencies coupled with higher output 
levels can be operated in different output modes (e.g., energy can be 
distributed among multiple output beams) that may lessen the likelihood 
of perception by and potential impact on marine mammals; however, we 
have analyzed the effects of these sources under the assumption that 
they will be operating at frequencies and energy outputs that are most 
likely to be detected by marine mammals and may result in Level B 
harassment.
    We now describe specific acoustic sources used by PIFSC. The 
acoustic system used during a particular survey is optimized for 
surveying under specific environmental conditions (e.g., depth and 
bottom type). Lower frequencies of sound travel further in the water 
(i.e., longer range) but provide lower resolution (i.e., less 
precision). Pulse width and power may also be adjusted in the field to 
accommodate a variety of environmental conditions. Signals with a 
relatively long pulse width travel further and are received more 
clearly by the transducer (i.e., good signal-to-noise ratio) but have a 
lower range resolution. Shorter pulses provide higher range resolution 
and can detect smaller and more closely spaced objects in the water. 
Similarly, higher power settings may decrease the utility of collected 
data. For example, power level is adjusted according to bottom type, as 
some bottom types have a stronger return and require less power to 
produce data of sufficient quality. Accordingly, power is typically set 
to the lowest level possible in order to receive a clear return with 
the best data. Survey vessels may be equipped with multiple acoustic 
systems; each system has different advantages that may be utilized 
depending on the specific survey area or purpose. In addition, many 
systems may be operated at one of two frequencies or at a range of 
frequencies. Primary source categories are described below, and 
characteristics of representative predominant sources are summarized in 
Table 2. Predominant sources are those that, when operated, would be 
louder than and/or have a larger acoustic footprint than other 
concurrently operated sources, at relevant frequencies.
    (1) Single and Multi-Frequency Narrow Beam Scientific 
Echosounders--Echosounders and sonars work by transmitting acoustic 
pulses into the water that travel through the water column, reflect off 
the seafloor, and return to the receiver. Water depth is measured by 
multiplying the time elapsed by the speed of sound in water (assuming 
accurate sound speed measurement for the entire signal path), while the 
returning signal itself carries information allowing ``visualization'' 
of the seafloor. Multi-frequency split-beam echosounders are deployed 
from PIFSC survey vessels to acoustically map the distributions and 
estimate the abundances and biomasses of many types of fish; 
characterize their biotic and abiotic environments; investigate 
ecological linkages; and gather information about their schooling 
behavior, migration patterns, and avoidance reactions to the survey 
vessel. The use of multiple frequencies allows coverage of a broad 
range of marine acoustic survey activity, ranging from studies of small 
plankton to large fish schools in a variety of environments from 
shallow coastal waters to deep ocean basins. Simultaneous use of 
several discrete echosounder frequencies facilitates accurate estimates 
of the size of individual fish, and can also be used for species 
identification based on differences in frequency-dependent acoustic 
backscattering among species.
    (2) Multibeam Echosounder and Sonar--Multibeam echosounders and 
sonars operate similarly to the devices described above. However, the 
use of multiple acoustic ``beams'' allows coverage of a greater area 
compared to single beam sonar. The sensor arrays for multibeam 
echosounders and sonars are usually mounted on the keel of the vessel 
and have the ability to look horizontally in the water column as well 
as straight down. Multibeam echosounders and sonars are used for 
mapping seafloor bathymetry, estimating fish biomass, characterizing 
fish schools, and studying fish behavior.
    (3) Acoustic Doppler Current Profiler (ADCP)--An ADCP is a type of 
sonar used for measuring water current velocities simultaneously at a 
range of depths. Whereas current depth profile measurements in the past 
required the use of long strings of current meters, the ADCP enables 
measurements of current velocities across an entire water column. The 
ADCP measures water currents with sound, using the Doppler effect. A 
sound wave has a higher frequency when it moves towards the sensor 
(blue shift) than when it moves away (red shift). The ADCP works by 
transmitting ``pings'' of sound at a constant frequency into the water. 
As the sound waves travel, they ricochet off particles suspended in the 
moving water, and reflect back to the instrument. Due to the Doppler 
effect, sound waves bounced back from a particle moving away from the 
profiler have a slightly lowered frequency when they return. Particles 
moving toward the instrument send back higher frequency waves. The 
difference in frequency between the waves the profiler sends out and 
the waves it receives is called the Doppler shift. The instrument uses 
this shift to calculate how fast the

[[Page 15311]]

particle and the water around it are moving. Moreover, sound waves that 
hit particles far from the profiler take longer to come back than waves 
that strike close by. By measuring the time it takes for the waves to 
return to the sensor, and the Doppler shift, the profiler can measure 
current speed at many different depths with each series of pings.
    An ADCP anchored to the seafloor can measure current speed not just 
at the bottom, but at equal intervals to the surface. An ADCP 
instrument may be anchored to the seafloor or can be mounted to a 
mooring or to the bottom of a boat. ADCPs that are moored need an 
anchor to keep them on the bottom, batteries, and a data logger. 
Vessel-mounted instruments need a vessel with power, a shipboard 
computer to receive the data, and a GPS navigation system so the ship's 
movements can be subtracted from the current velocity data. ADCPs 
operate at frequencies between 75 and 300 kHz.
    (4) Net Monitoring Systems--During trawling operations, a range of 
sensors may be used to assist with controlling and monitoring gear. Net 
sounders give information about the concentration of fish around the 
opening to the trawl, as well as the clearances around the opening and 
the bottom of the trawl; catch sensors give information about the rate 
at which the codend is filling; symmetry sensors give information about 
the optimal geometry of the trawls; and tension sensors give 
information about how much tension is in the warps and sweeps.

                             Table 2--Operating Characteristics of Representative Predominant PIFSC Active Acoustic Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Single ping duration
      Active acoustic system         Operating frequencies   Maximum source level     (ms) and repetition        Orientation/        Nominal beamwidth
                                                                                           rate (Hz)            directionality
--------------------------------------------------------------------------------------------------------------------------------------------------------
Simrad EK60 narrow beam             38, 70, 120, 200 kHz..  224 dB................  1 ms at 1 Hz...........  Downward looking....  7[deg]
 echosounder.
Simrad EM300 multibeam echosounder  30 kHz................  237 dB................  0.7-15 ms at 5 Hz......  Downward looking....  1[deg]
ADCP Ocean Surveyor...............  75 kHz................  223.6 dB..............  1 ms at 4 Hz...........  Downward looking      4[deg]
                                                                                                              (30[deg] tilt).
Netmind...........................  30, 200 kHz...........  190 dB................  up to 0.3 ms at 7-9 Hz.  Trawl-mounted.......  50[deg]
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Nearshore and Land-based Surveys--The Pacific Reef Assessment and 
Monitoring Program (RAMP) and Marine Debris Research and Removal 
Surveys involve circumnavigating islands and atolls using small vessels 
that may approach the shoreline. Additionally, the Marine Debris 
Research and Removal Surveys may involve land vehicle (trucks) 
operations in areas of marine debris where vehicle access is possible 
from highways or rural/dirt roads adjacent to coastal resources. The 
RAMP and Marine Debris Research and Removal Surveys have the potential 
to disturb pinnipeds hauled out during research activities either from 
approaches of nearshore small vessel based research or land based 
debris research and clean-up activities.

Description of Marine Mammals in the Area of the Specified Activity

    We have reviewed PIFSC's species descriptions--which summarize 
available information regarding status and trends, distribution and 
habitat preferences, behavior and life history, and auditory 
capabilities of the potentially affected species--for accuracy and 
completeness and refer the reader to Sections 3 and 4 of PIFSC's 
application, instead of reprinting the information here (note that 
PIFSC provides additional information regarding marine mammal 
observations around the Main Hawaiian Islands in Table 3.3 of their 
application, including information about group size and seasonality). 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS's website 
(www.fisheries.noaa.gov/find-species).
    Table 3 lists all species with expected potential for occurrence in 
the specified geographical regions where PIFSC proposes to conduct the 
specified activity and summarizes information related to the population 
or stock, including regulatory status under the MMPA and ESA and 
potential biological removal (PBR), where known. For taxonomy, we 
follow the Society for Marine Mammalogy Committee on Taxonomy (2020). 
PBR, defined by the MMPA as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population, is discussed in greater detail later in this 
document (see ``Negligible Impact Analysis'').
    Stocks are not designated for most species in areas of the 
specified geographical regions outside of the Hawaiian EEZ. Therefore, 
while all species with expected potential for occurrence in the 
specified geographical regions are listed in Table 3, the listed stocks 
are in most cases specific to the Hawaiian EEZ. The only exceptions are 
NMFS-designated stocks for the humpback whale, rough-toothed dolphin, 
spinner dolphin, and false killer whale in American Samoa (animals 
belonging to these stocks would occur in the ASARA), and a false killer 
whale stock designated for Palmyra Atoll (animals belonging to this 
stock would occur in the WCPRA). With the exception of the humpback 
whale, which is discussed in greater detail following Table 3, and the 
aforementioned Palmyra Atoll stock of false killer whale, animals of 
any species occurring in the MARA or areas of the WCPRA outside of the 
Hawaiian EEZ and American Samoa EEZ would not be part of any NMFS-
designated stock. Aside from the four species listed above, animals of 
any species occurring in the American Samoa EEZ would not be part of 
any NMFS-designated stock. As a reminder, the HARA, MARA, and ASARA are 
considered to include waters of the contiguous zone around these 
archipelagoes (i.e., 0-24 nmi from land), while the WCPRA is considered 
to include all remaining EEZ waters around those archipelagoes as well 
as the high seas and waters around U.S. possessions of the Pacific 
Remote Islands Area.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that

[[Page 15312]]

make up a given stock or the total number estimated within a particular 
study or survey area. Abundance estimates and related information, PBR 
values, and annual M/SI values given in Table 3 are specific to the 
stocks for which they are listed. This information is generally not 
available for these species occurring in areas outside the ranges of 
NMFS-designated stocks. NMFS-designated stocks in the Hawai[revaps]i 
region include animals found both within the Hawaiian Islands EEZ and 
in adjacent high seas waters; however, because data on abundance, 
distribution, and human-caused impacts are largely lacking for high 
seas waters, the status of these stocks are generally evaluated based 
on data from the U.S. EEZ waters of the Hawaiian Islands (including the 
Main Hawaiian Islands and Northwestern Hawaiian Islands). For certain 
species, existing data support the existence of demographically 
distinct resident populations associated with different regions within 
the Hawaiian Islands, and separate stocks are designated accordingly. 
NMFS-designated stocks for American Samoa include animals occurring 
within U.S. EEZ waters around American Samoa. All managed stocks in the 
specified geographical regions are assessed in either NMFS's U.S. 
Pacific SARs or U.S. Alaska SARs. All values presented in Table 3 are 
the most recent available at the time of writing and are available 
online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
    Twenty-six species (with 46 managed stocks; no stock is designated 
for Deraniyagala's beaked whale) are considered to have the potential 
to co-occur with and potentially be taken by PIFSC activities. Species 
that could potentially occur in the research areas but are not expected 
to have the potential for interaction with PIFSC research gear or that 
are not likely to be harassed by PIFSC's use of active acoustic devices 
are described briefly but omitted from further analysis. These include 
extralimital species, which are species that do not normally occur in a 
given area but for which there are one or more occurrence records that 
are considered beyond the normal range of the species. Extralimital 
species or stocks include the North Pacific right whale (Eubalaena 
japonica; all areas except ASARA), Omura's whale (Balaenoptera omurai; 
all areas), Antarctic minke whale (B. bonaerensis; ASARA and WCPRA), 
southern bottlenose whale (Hyperoodon planifrons; ASARA and WCPRA), 
common dolphin (Delphinus delphis; all areas), northern elephant seal 
(Mirounga angustirostris; HARA and WCPRA), and northern fur seal 
(Callorhinus ursinus; HARA and WCPRA).

                                Table 3--Marine Mammals Potentially Present in the Vicinity of PIFSC Research Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Occurrence \2\                       Stock abundance
                                                                        ----------------------------   ESA/MMPA     (CV, Nmin, most
          Common name              Scientific name        Stock \1\                                     status;    recent  abundance     PBR    Annual M/
                                                                         H A R  M A R  A S A  W C P  strategic (Y/    survey) \4\                SI \5\
                                                                           A      A     R A    R A      N) \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
                                                            Family Balaenopteridae (rorquals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale *...............  Megaptera           American Samoa....     X      X      X      X   -; N........  unk (n/a; 150;          0.4         0
                                  novaeangliae       Central North       .....  .....  .....  .....  E/D; Y......   2008).                  83        25
                                  kuzira.             Pacific (CNP).                                               10,103 (0.3;
                                                                                                                    7,891; 2006).
                                                     Western North       .....  .....  .....  .....  E/D; Y......  1,107 (0.3; 865;          3       2.6
                                                      Pacific.                                                      2006).
Minke whale....................  Balaenoptera        Hawaii............     X      X      X      X   -; N........  unk..............     undet         0
                                  acutorostrata
                                  scammoni.
Bryde's whale..................  B. edeni brydei...  Hawaii............     X      X      X      X   -; N........  1,751 (0.29;           13.8         0
                                                                                                                    1,378; 2010).
Sei whale......................  B. borealis         Hawaii............     X      X   .....     X   E/D; Y......  391 (0.9; 204;          0.4       0.2
                                  borealis.                                                                         2010).
Fin whale......................  B. physalus         Hawaii............     X      X   .....     X   E/D; Y......  154 (1.05; 75;          0.1         0
                                  physalus.                                                                         2010).
Blue whale.....................  B. musculus         CNP...............     X      X   .....     X   E/D; Y......  133 (1.09; 63;          0.1         0
                                  musculus.                                                                         2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
                                                                   Family Physeteridae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale....................  Physeter            Hawaii............     X      X      X      X   E/D; Y......  4,559 (0.33;           13.9       0.7
                                  macrocephalus.                                                                    3,478; 2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Family Kogiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pygmy sperm whale..............  Kogia breviceps...  Hawaii............     X      X   .....     X   -; N........  unk..............     undet         0
Dwarf sperm whale..............  K. sima...........  Hawaii \6\........     X      X      X      X   -; N........  unk..............     undet         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Family Ziphiidae (beaked whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cuvier's beaked whale..........  Ziphius             Hawaii............     X      X      X      X   -; N........  723 (0.69; 428;         4.3         0
                                  cavirostris.                                                                      2010).
Longman's beaked whale.........  Indopacetus         Hawaii............     X   .....  .....     X   -; N........  7,619 (0.66;             46         0
                                  pacificus.                                                                        4,592; 2010).
Blainville's beaked whale......  Mesoplodon          Hawaii............     X      X   .....     X   -; N........  2,105 (1.13; 980;        10         0
                                  densirostris.                                                                     2010).
Deraniyagala's beaked whale....  M. hotaula........  n/a...............  .....  .....  .....     X   -; N........  unk..............     undet       unk
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rough-toothed dolphin *........  Steno bredanensis.  Hawaii............     X      X      X      X   -; N........  72,528 (0.39;           423       2.1
                                                                                                                    52,833; 2010).
                                                     American Samoa....  .....  .....  .....  .....  -; N........  unk..............     undet       unk
Common bottlenose dolphin *....  Tursiops truncatus  Hawai[revaps]i         X      X      X      X   -; N........  21,815 (0.57;           140         0
                                  truncatus.          Pelagic.                                                      13,957; 2010).
                                                     Kauai and           .....  .....  .....  .....  -; N........  184 (0.11; 97;          1.0       unk
                                                      Ni[revaps]ihau.                                               2015).

[[Page 15313]]

 
                                                     Oahu \6\..........  .....  .....  .....  .....  -; N........  743 (0.54; 388;       undet       unk
                                                                                                                    2006).
                                                     4-Island Region     .....  .....  .....  .....  -; N........  191 (0.24; unk;       undet       unk
                                                      \6\.                                                          2006).
                                                     Hawai[revaps]i      .....  .....  .....  .....  -; N........  128 (0.13; 91;          0.9       unk
                                                      Island.                                                       2013).
Pantropical spotted dolphin *..  Stenella attenuata  Hawai[revaps]i         X      X      X      X   -; N........  55,795 (0.4;            403         0
                                  attenuata.          Pelagic.                                                      40,338; 2010).
                                                     Oahu..............  .....  .....  .....  .....  -; N........  unk..............     undet       unk
                                                     4-Island Region...  .....  .....  .....  .....  -; N........  unk..............     undet       unk
                                                     Hawai[revaps]i      .....  .....  .....  .....  -; N........  unk..............     undet    >= 0.2
                                                      Island.
Spinner dolphin *..............  S. longirostris     Hawai[revaps]i         X      X      X      X   -; N........  unk..............     undet         0
                                  longirostris.       Pelagic.           .....  .....  .....  .....  -; N........  601 (0.2; unk;        undet       unk
                                                     Kauai and                                                      2005).
                                                      Ni[revaps]ihau.
                                                     Oahu/4-Island       .....  .....  .....  .....  -; N........  355 (0.09; unk;       undet       unk
                                                      Region.                                                       2007).
                                                     Hawai[revaps]i      .....  .....  .....  .....  -; N........  665 (0.09; 617;         6.2       unk
                                                      Island.                                                       2012).
                                                     Kure and Midway     .....  .....  .....  .....  -; N........  260 (n/a; 139;        undet       unk
                                                      Atoll \6\.                                                    1998).
                                                     Pearl and Hermes    .....  .....  .....  .....  -; N........  unk..............     undet       unk
                                                      Reef.
                                                     American Samoa....  .....  .....  .....  .....  -; N........  unk..............     undet       unk
Striped dolphin................  S. coeruleoalba...  Hawai[revaps]i         X      X   .....     X   -; N........  61,021 (0.38;           449         0
                                                      Pelagic.                                                      44,922; 2010).
Fraser's dolphin...............  Lagenodelphis       Hawaii............     X      X   .....     X   -; N........  51,491 (0.66;           310         0
                                  hosei.                                                                            31,034; 2010).
Risso's dolphin................  Grampus griseus...  Hawaii............     X      X   .....     X   -; N........  11,613 (0.43;            82         0
                                                                                                                    8,210; 2010).
Melon-headed whale *...........  Peponocephala       Hawaii............     X      X   .....     X   -; N........  8,666 (1.0;              43         0
                                  electra.                                                                          4,299; 2010).
                                                     Kohala Resident...  .....  .....  .....  .....  -; N........  447 (0.12; 404;           4         0
                                                                                                                    2009).
Pygmy killer whale.............  Feresa attenuata..  Hawaii............     X      X   .....     X   -; N........  10,640 (0.53;            56       1.1
                                                                                                                    6,998; 2010).
False killer whale *...........  Pseudorca           Northwestern           X      X      X      X   -; N........  617 (1.11; 290;         2.3       0.4
                                  crassidens.         Hawaiian Islands.                                             2010).
                                                     Hawai[revaps]i      .....  .....  .....  .....  -; N........  1,540 (0.66; 928;       9.3       7.6
                                                      Pelagic.                                                      2010).
                                                     Hawai[revaps]i      .....  .....  .....  .....  E/D; Y......  167 (0.14; 149;         0.3         0
                                                      Insular.                                                      2015).
                                                     American Samoa....  .....  .....  .....  .....  -; N........  unk..............     undet       unk
                                                     Palmyra Atoll.....  .....  .....  .....  .....  -; N........  1,329 (0.65; 806;       6.4       0.3
                                                                                                                    2005).
Killer whale...................  Orcinus orca......  Hawaii............     X      X      X      X   -; N........  146 (0.96; 74;          0.7         0
                                                                                                                    2010).
Short-finned pilot whale.......  Globicephala        Hawaii............     X      X      X      X   -; N........  19,503 (0.49;           106       0.9
                                  macrorhynchus.                                                                    13,197; 2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hawaiian monk seal *...........  Neomonachus         Hawaii............     X   .....  .....     X   E/D; Y......  1,351 (0.03;            4.6     >=1.6
                                  schauinslandi.                                                                    1,325; 2017).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Species marked with an asterisk are addressed in further detail in text below. Additional detail for all species may be found in Sections 3 and 4 of
  PIFSC's application.
\1\ All species with potential for take by PIFSC are presented in Table 1. All known stocks are presented here but marine mammals in the MARA, ASARA,
  and WCPRA are generally not assigned to designated stocks.
\2\ HARA: Hawaiian Archipelago Research Area; MARA: Mariana Archipelago Research Area; ASARA: American Samoa Archipelago Research Area; WCPRA: Western
  and Central Pacific Research Area.
\3\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\4\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\5\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum
  value.
\6\ Abundance estimates for these stocks are not considered current. PBR is therefore considered undetermined for these stocks, as there is no current
  minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available
  information for use in this document.

    Humpback Whale--Prior to 2016, humpback whales were listed under 
the ESA as an endangered species worldwide. Following a 2015 global 
status review (Bettridge et al., 2015), NMFS established 14 distinct 
population segments (DPS) with different listing statuses (81 FR 62259; 
September 8, 2016) pursuant to the ESA. The DPSs that occur in U.S. 
waters do not necessarily equate to the existing stocks designated 
under the MMPA and shown in Table 2. Because MMPA stocks cannot be 
portioned, i.e., parts managed as ESA-listed while other parts managed 
as not ESA-listed, until such time as the MMPA stock delineations are 
reviewed in light of the DPS designations, NMFS considers the existing 
humpback whale stocks under the MMPA to be endangered and depleted for 
MMPA management purposes (e.g., selection of a recovery factor, stock 
status).
    Within western and central Pacific waters, three DPSs may occur: 
The Western North Pacific (WNP) DPS (endangered), Hawai[revaps]i DPS 
(not listed), and Oceania DPS (not listed). Whales encountered in the 
HARA would be from the Hawai[revaps]i DPS; whales encountered in the 
MARA from the WNP DPS; and whales encountered in the ASARA from the 
Oceania DPS. While not possible to know in advance the identity of 
whales encountered in the WCPRA, in reality the DPS identity would 
likely be determined based on proximity to either the HARA, MARA, or 
ASARA. PIFSC has requested authorization of humpback whale take by M/SI 
only for the CNP stock (i.e., Hawai[revaps]i DPS) and has not requested 
take of humpback whales (from any stock) by

[[Page 15314]]

Level B harassment; see ``Estimated Take'' section.
    With regard to abundance, an updated analysis of data from the 
Structure of Populations, Levels of Abundance and Status of Humpback 
Whales in the North Pacific (SPLASH) study provided an estimate of 
21,808 (CV = 0.04) humpback whales in the North Pacific Ocean (Barlow 
et al., 2011). Bettridge et al. (2015) stated that this estimate may 
still be an underestimate of actual humpback whale abundance due to 
biases that could not be corrected for using the available data. 
Calambokidis et al. (2008) approximated the size of the whale 
populations frequenting each breeding area at 10,000 individuals in 
Hawai[revaps]i and 1,000 for the WNP areas. Although Barlow et al. 
(2011) did not apportion their estimate to individual breeding areas, 
Bettridge et al. (2015) state that the proportions are likely to be 
similar to those estimated by Calambokidis et al. (2008) and therefore 
about 20 percent larger than the Calambokidis et al. (2008) estimates, 
i.e., 12,000 individuals in the Hawai[revaps]i DPS and 1,200 
individuals in the WNP DPS. The size of the Oceania DPS has been 
estimated at 3,827 (CV = 0.12) whales for a portion of the DPS breeding 
range covering New Caledonia, Tonga, French Polynesia, and the Cook 
Islands (SPWRC, 2006).
    In winter, most humpback whales occur in the subtropical and 
tropical waters of the Northern and Southern Hemispheres, then migrate 
to higher latitudes in the summer to feed (Muto et al., 2018). Peak 
abundance in Hawaiian waters occurs from late-February to early-April 
(Mobley et al., 2001). The Hawaiian Islands Humpback Whale National 
Marine Sanctuary (HIHWNMS) was established in 1992 by the U.S. Congress 
to protect humpback whales and their habitat in Hawai[revaps]i (NOAA 
2018a). The sanctuary provides essential breeding, calving, and nursing 
areas necessary for the long-term recovery of the North Pacific 
humpback whale population. The HIHWNMS provides protection to humpbacks 
in the shallow waters (from the shoreline to a depth of 100 fathoms or 
183 m) around the four islands area of Maui, Penguin Bank; off the 
north shore of Kauai, the north and south shores of Oahu, and the north 
Kona and Kohala coast of the island of Hawai[revaps]i (NOAA 2018a). 
These areas, as well as some of the waters surrounding them, are also 
considered biologically important areas (BIAs) for reproduction (Table 
3; Baird et al,. 2015).
    Please see Caretta et al. (2019) for additional information on the 
Central North Pacific and Western North Pacific stocks, and Caretta et 
al. (2009) for additional information on the American Samoa stock.
    Rough-toothed Dolphin--Rough-toothed dolphins are found throughout 
the world in tropical and warm-temperate waters. They are present 
around all the MHI and have been observed close to the islands and 
atolls at least as far northwest as Pearl and Hermes Reef in the NWHI. 
Although analysis of genetic samples indicates that designation of a 
separate Hawai[revaps]i Island stock may be warranted, only a single 
Hawai[revaps]i stock has been designated. Waters off the west side of 
Hawai[revaps]i Island have been identified as a BIA for the small and 
resident population of rough-toothed dolphins (Table 4; Baird et al., 
2015). Rough-toothed dolphins are common in the South Pacific from the 
Solomon Islands to French Polynesia and the Marquesas, and have been 
among the most commonly observed cetaceans during summer and winter 
surveys conducted from 2003-06 around the American Samoan island of 
Tutuila (though they were not observed during 2006 surveys of Swain's 
Island and the Manua Group). In addition, a rough-toothed dolphin was 
caught incidentally in the American Samoa-based longline fishery in 
2008, indicating that some dolphins maintain a more pelagic 
distribution. Rough-toothed dolphins are thought to be common 
throughout the Samoan archipelago. No abundance estimates are available 
for rough-toothed dolphins in American Samoa, though investigation of 
published density estimates for rough-toothed dolphins in other 
tropical Pacific regions yields a plausible abundance estimate range of 
692-3,115 rough-toothed dolphins in the American Samoa EEZ. Therefore, 
a plausible range of PBR values would be 3.4-22 dolphins (assuming a 
default growth rate and recovery factor of 0.4) (Carretta et al., 
2015). Please see Carretta et al. (2015, 2018) for more information 
about these stocks.
    Bottlenose Dolphin--Bottlenose dolphins are widely distributed 
throughout the world in tropical and warm-temperate waters. The species 
is primarily coastal in much of its range, but there are populations in 
some offshore deepwater areas as well. Bottlenose dolphins are common 
throughout the Hawaiian Islands, from the island of Hawai[revaps]i to 
Kure Atoll, and are found in shallow inshore waters and deep water. 
Baird et al. (2015) identified three BIAs in the Hawaiian Archipelago 
for small and resident populations of bottlenose dolphins (Table 3). 
Photo-identification and genetic studies in the MHI suggest limited 
movement of bottlenose dolphins between islands and offshore waters and 
the existence of demographically distinct resident populations at each 
of the four MHI island groups (as reflected in the current stock 
designations). Genetic data support inclusion of bottlenose dolphins in 
deeper waters surrounding the MHI as part of the broadly distributed 
pelagic population which, in Hawaiian waters, is managed as a pelagic 
stock. The boundary between the pelagic stock and insular stocks is 
placed at the 1,000-m isobath (the boundary between the Oahu and 4-
Islands stocks is designated as equidistant between the 500 m isobaths 
around Oahu and the 4-Islands Region, through the middle of Kaiwi 
Channel). Although it is likely that additional demographically 
independent populations of bottlenose dolphins exist in the NWHI, those 
animals are considered part of the pelagic stock until additional data 
become available upon which to base stock designations. Photo-
identification studies conducted from 2012-15 identified a minimum of 
97 distinct individuals in the Kauai-Ni[revaps]ihau stock (Table 2), 
though earlier photo-identification studies conducted from 2003-05 (and 
now considered outdated) resulted in an abundance estimate of 147 (CV = 
0.11), or 184 animals when corrected for the proportion of marked 
individuals (Baird et al., 2009). Similarly for the Hawai[revaps]i 
Island stock, photo-identification studies conducted from 2000-06 (and 
now considered outdated) resulted in an abundance estimate of 102 (CV = 
0.13), or 128 animals when corrected for the proportion of marked 
individuals (Baird et al., 2009), whereas later studies conducted from 
2010-13 identified a minimum of 91 distinct individuals (Table 2). For 
both of these stocks, a current PBR value is calculated using the more 
recent minimum abundance estimates. Available abundance information for 
other bottlenose dolphin stocks is shown in Table 3. Please see 
Carretta et al. (2018) for additional information about these stocks of 
bottlenose dolphin.
    Pantropical Spotted Dolphin--Pantropical spotted dolphins are 
primarily found in tropical and subtropical waters worldwide, and have 
been observed in all months of the year around the MHI, in areas 
ranging from shallow nearshore water to depths of 5,000 m, although 
sighting rates peak in depths from 1,500 to 3,500 m. As with bottlenose 
dolphins, genetic analyses suggest the existence of island-associated 
stocks. However, although commonly observed off of three of the

[[Page 15315]]

MHI island groups, they are largely absent from waters around Kauai and 
Ni[revaps]ihau, and only three insular stocks are designated. The Oahu 
and 4-Islands stocks are considered to include animals within 20 km of 
those island groups, whereas the Hawai[revaps]i Island stock includes 
animals within 65 km of Hawai[revaps]i Island. The pelagic stock 
includes animals occurring in Hawaiian EEZ and adjacent high seas 
waters outside these insular stock areas. No abundance information is 
available for the insular stocks. Baird et al. (2015) identified two 
BIAs for small and resident populations of pantropical spotted dolphins 
in the Hawaiian Archipelago (Table 3). Please see Carretta et al. 
(2018) for additional information about these stocks.
    Spinner Dolphin--Spinner dolphins occur in all tropical and most 
sub-tropical waters between 30-40[deg] N and 20-40[deg] S latitude, 
generally in areas with a shallow mixed layer, shallow and steep 
thermocline, and little variation in surface temperature (Perrin 
2009a). Within the central and western Pacific, spinner dolphins are 
island-associated and use shallow protected bays to rest and socialize 
during the day then move offshore at night to feed. They are common in 
nearshore waters throughout the Hawaiian archipelago (Carretta et al., 
2012). There are seven stocks found within the PIFSC fisheries and 
ecosystem research areas: (1) Hawai`i Island, (2) Oahu/4-Islands, (3) 
Kauai/Ni`ihau, (4) Pearl & Hermes Reef, (5) Kure/Midway, (6) Hawai`i 
pelagic, including animals found both within the Hawaiian Islands EEZ 
(outside of island-associated boundaries) and in adjacent international 
waters, and (7) the American Samoa stock, which includes animals 
inhabiting the U.S. EEZ waters around American Samoa. Baird et al. 
identified five BIAs for small and resident populations of spinner 
dolphins within the Hawaiian Archipelago (Table 3). Please see Caretta 
et al. (2019) for additional information about the Hawaiian Island 
Stocks Complex (including the Hawai[revaps]i Island, Oahu/4-islands, 
Kauai/Ni[revaps]ihau, Pearl & Hermes Reef, Midway Atoll/Kure, 
Hawai[revaps]i Pelagic stocks) and Caretta et al. (2011) for additional 
information on the American Samoa stock.
    Melon-headed Whale--Melon-headed whales are distributed worldwide 
in tropical and warm-temperate waters. The distribution of reported 
sightings suggests that the oceanic habitat of this species is in 
primarily equatorial waters (Perryman et al., 1994). They generally 
occur offshore in deep oceanic waters. Nearshore distribution is 
generally associated with deep water areas near to the coast (Perryman 
2009). Photo-identification and telemetry studies suggest there are two 
demographically-independent populations of melon-headed whales in 
Hawaiian waters, the Hawaiian Islands stock and the Kohala resident 
stock (Carretta et al., 2015). The Hawaiian Islands stock includes 
melon-headed whales inhabiting waters throughout the U.S. EEZ of the 
Hawaiian Islands, including the area of the Kohala resident stock, and 
adjacent high seas waters, and (2) the Kohala resident stock, which 
includes melon-headed whales off the Kohala Peninsula and west coast of 
Hawai`i Island and in less than 2500m of water. At this time, 
assignment of individual melon-headed whales within the overlap area to 
either stock requires photographic-identification of the animal. 
Resighting data and social network analyses of photographed individuals 
indicate very low rates of interchange between the Hawaiian Islands and 
Kohala resident stocks (Aschettino et al., 2012). This finding is 
supported by preliminary genetic analyses that suggest a restricted 
gene flow between the Kohala residents and other melon-headed whales 
sampled in Hawaiian waters (Oleson et al., 2013). Baird et al. (2015) 
identified a BIA for the small and resident Kohola stock of melon-
headed whales off the northwestern tip of Hawai[revaps]i Island (Table 
3). Please see Caretta et al. (2018) for additional information about 
these stocks.
    False Killer Whale--False killer whales occur throughout tropical 
and warm temperate waters worldwide. They are largely pelagic, but also 
occur nearshore and in shallow waters around oceanic islands (Baird 
2009b). Five stocks are recognized in the U.S. EEZ of the Pacific 
Ocean: (1) The Main Hawaiian Islands insular stock, which includes 
animals found within 72 km (38.9 nm) of the MHIs; (2) the NWHI stock, 
which includes animals inhabiting waters within the NWHI and a 50 nmi 
radius around Kauai; (3) the Hawai`i pelagic stock, which includes 
animals found inhabiting waters greater than 11 km (5.9 nmi) from the 
MHI, including adjacent high seas waters; (4) the Palmyra Atoll stock, 
which includes animals found within the U.S. EEZ of Palmyra Atoll; and 
(5) the American Samoa stock, which includes animals found within the 
U.S. EEZ of American Samoa. On August 23, 2018, NMFS designated waters 
from the 45-m depth contour to the 3,200-m depth contour around the 
main Hawaiian Islands from Ni[revaps]ihau east to Hawai[revaps]i as 
critical habitat for the Main Hawaiian Islands insular DPS of false 
killer whales (83 FR 35062; July 24, 2018). Additionally, Baird et al. 
(2015) identified waters throughout the MHI as a BIA for the small and 
resident Main Hawaiian Islands insular stock of false killer whales 
(Table 3). As described in detail below, a take reduction plan was 
finalized in 2012 to address high rates of false killer whale mortality 
and serious injury in Hawai[revaps]i-based longline fisheries. Please 
see Caretta et al. (2018) for additional information on the Hawaiian 
Islands Stock Complex (including the MHI Insular stock, NWHI stock, and 
Hawai[revaps]i pelagic stock), and Caretta et al. (2011) and (2012) for 
additional information on the American Samoa and Palmyra Atoll stocks, 
respectively.
    Hawaiian monk seal--The majority of the Hawaiian monk seal 
population can be found around the NWHI, but a small and growing 
population lives around the MHIs. As summarized in Carretta et al. 
(2014, 2012, and citations herein), Hawaiian monk seals are distributed 
predominantly in six NWHI subpopulations at French Frigate Shoals, 
Laysan and Lisianski Islands, Pearl and Hermes Reef, and Midway and 
Kure Atoll. They also occur at Necker and Nihoa Islands, which are the 
southernmost islands in the NWHI. Genetic variation among NWHI monk 
seals is extremely low and may reflect both a long-term history at low 
population levels and more recent human influences (Schultz et al. 
2008). On average, 10-15 percent of the seals migrate among the NWHI 
subpopulations. Thus, the NWHI subpopulations are not isolated, though 
the different island subpopulations have exhibited considerable 
demographic independence. Observed interchange of individuals among the 
NWHI and MHI regions is uncommon, and genetic stock structure analysis 
supports management of the species as a single stock. Please see 
Caretta et al. (2019) for additional information on this species.
    Take Reduction Planning--Take reduction plans are designed to help 
recover and prevent the depletion of strategic marine mammal stocks 
that interact with certain U.S. commercial fisheries, as required by 
Section 118 of the MMPA. The immediate goal of a take reduction plan is 
to reduce, within six months of its implementation, the M/SI of marine 
mammals incidental to commercial fishing to less than the PBR level. 
The long-term goal is to reduce, within five years of its 
implementation, the M/SI of marine mammals incidental to commercial 
fishing to insignificant levels, approaching a zero serious injury and 
mortality rate, taking into account the economics of the fishery, the 
availability of existing technology, and

[[Page 15316]]

existing state or regional fishery management plans. Take reduction 
teams are convened to develop these plans.
    For marine mammals off Hawaii, there is currently one take 
reduction plan in effect (False Killer Whale Take Reduction Plan). The 
goal of this plan is to reduce M/SI of false killer whales in Hawaii-
based deep-set and shallow-set longline fisheries; the plan addresses 
only the Hawai[revaps]i Insular and Hawai[revaps]i Pelagic stocks of 
false killer whale. A team was convened in 2010 and a final plan 
produced in 2012 (77 FR 71260; November 29, 2012). The most recent 
five-year averages of M/SI for these stocks are below PBR. More 
information is available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/false-killer-whale-take-reduction. PIFSC has 
requested the authorization of incidental M/SI for false killer whale; 
however, this take is expected to potentially occur only for the 
Hawai[revaps]i Pelagic stock or for false killer whales belonging to 
unspecified stocks and occurring in high seas waters (see ``Estimated 
Take'' later in this document). PIFSC longline research would not occur 
within the ranges of other designated stocks of false killer whale.
    Regulatory measures required by the plan include gear requirements, 
longline prohibited areas, training and certification in marine mammal 
handling and release, captains' supervision of marine mammal handling 
and release, and posting of NMFS-approved placards on longline vessels. 
On July 18, 2018, NMFS issued a temporary rule (83 FR 33848) to close 
one of the prohibited areas to deep-set longline fishing for the 
remainder of the calendar year, because a bycatch trigger established 
per the regulations implementing the plan was met. PIFSC does not 
conduct research with longline gear within any of the exclusion zones 
established by the plan, and PIFSC longline gear adheres to all 
relevant requirements placed on commercial gear. PIFSC is not 
conducting commercial fishing as described by the MMPA, but PIFSC is 
adhering to these commercial fishing restrictions nevertheless. There 
are no take reduction plans currently in effect for fisheries in 
American Samoa, the Marianas, or other locations considered herein.
    Unusual Mortality Events (UME)--A UME is defined under the MMPA as 
``a stranding that is unexpected; involves a significant die-off of any 
marine mammal population; and demands immediate response.'' Based on 
records from 1991 to the present, there have not been any formally 
recognized UMEs in the Pacific Islands. However, some migratory whales 
may have been impacted by UMEs occurring in Alaska. For more 
information on UMEs, please visit: www.fisheries.noaa.gov/national/marine-life-distress/marine-mammal-unusual-mortality-events.

Biologically Important Areas

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

                        Table 4--Biologically Important Areas Within PIFSC Research Areas
----------------------------------------------------------------------------------------------------------------
             BIA name                    Species              BIA type           Time of year      Size (km\2\)
----------------------------------------------------------------------------------------------------------------
                                    HAWAIIAN ARCHIPELAGO RESEARCH AREA (HARA)
----------------------------------------------------------------------------------------------------------------
Kure Atoll and Midway Atoll......  Spinner dolphin....  Small and resident.  Year-round.........           4,630
Pearl and Hermes Reef............  Spinner dolphin....  Small and resident.  Year-round.........           2,099
Kauai and Ni[revaps]ihau.........  Spinner dolphin....  Small and resident.  Year-round.........           7,226
Ni[revaps]ihau and Kauai.........  Bottlenose dolphin.  Small and resident.  Year-round.........           2,764
Kauai, Ni[revaps]ihau, Maui,       Humpback whale.....  Reproduction.......  February-March.....           5,846
 Hawai[revaps]i Islands.
Oahu and 4-Islands Area..........  Spinner dolphin....  Small and resident.  Year-round.........          14,616
Oahu.............................  Bottlenose dolphin.  Small and resident.  Year-round.........           3,802
Oahu.............................  Pantropical spotted  Small and resident.  Year-round.........           1,048
                                    dolphin.
Hawai[revaps]i Island to           False killer whale.  Small and resident.  Year-round.........           5,430
 Ni[revaps]ihau Island.
4-Islands Area...................  Bottlenose dolphin.  Small and resident.  Year-round.........          10,622
Maui and Lanai...................  Pantropical spotted  Small and resident.  Year-round.........             699
                                    dolphin.
Hawai[revaps]i Island............  Cuvier's beaked      Small and resident.  Year-round.........          23,583
                                    whale.
Hawai[revaps]i Island............  Blainville's beaked  Small and resident.  Year-round.........           7,442
                                    whale.
Hawai[revaps]i Island............  Bottlenose dolphin.  Small and resident.  Year-round.........           4,732
Hawai[revaps]i Island............  Melon-headed whale.  Small and resident.  Year-round.........           1,753
Hawai[revaps]i Island............  Short-finned pilot   Small and resident.  Year-round.........           2,968
                                    whale.

[[Page 15317]]

 
Hawai[revaps]i Island............  Rough-toothed        Small and resident.  Year-round.........           7,175
                                    dolphin.
Hawai[revaps]i Island............  Spinner dolphin....  Small and resident.  Year-round.........           9,469
Hawai[revaps]i Island............  Pantropical spotted  Small and resident.  Year-round.........           5,505
                                    dolphin.
Hawai[revaps]i Island............  Pygmy killer whale.  Small and resident.  Year-round.........           2,265
Hawai[revaps]i Island............  Dwarf sperm whale..  Small and resident.  Year-round.........           2,675
----------------------------------------------------------------------------------------------------------------

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans).
    Subsequently, NMFS (2018) described generalized hearing ranges for 
these marine mammal hearing groups. Generalized hearing ranges were 
chosen based on the approximately 65 dB threshold from the normalized 
composite audiograms, with an exception for lower limits for low-
frequency cetaceans where the result was deemed to be biologically 
implausible and the lower bound of the low-frequency cetacean hearing 
range from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 5.

           Table 5--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen         7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,      150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true          275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Twenty-six marine mammal species (25 cetacean species and one phocid 
pinniped) have the potential to co-occur with PIFSC research 
activities--please refer to Table 3. Of the 25 cetacean species that 
may be present, six are classified as low-frequency cetaceans, 17 are 
classified as mid-frequency cetaceans, and two are classified as high-
frequency cetaceans.

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

    This section includes a summary and discussion of the ways that 
components of the specified activity (e.g., gear deployment, use of 
active acoustic sources, visual disturbance) may impact marine mammals 
and their habitat. The ``Estimated Take'' section later in this 
document includes a quantitative analysis of the number of individuals 
that are expected to be taken by this activity. The ``Negligible Impact 
Analysis and Determination'' section considers the content of this 
section and the material it references, the ``Estimated Take'' section, 
and the ``Proposed Mitigation'' section, to draw conclusions regarding 
the likely impacts of these activities on the reproductive success or 
survivorship of individuals and how those impacts on individuals are 
likely to impact marine mammal species or stocks. In the following 
discussion, we consider potential effects to marine mammals from ship 
strike, physical interaction with the gear types described previously, 
use of active acoustic sources, and visual disturbance of pinnipeds.

Ship Strike

    Vessel collisions with marine mammals, or ship strikes, can result 
in death or serious injury of the animal. Wounds resulting from ship 
strike may include massive trauma, hemorrhaging, broken bones, or 
propeller lacerations (Knowlton and Kraus, 2001). An animal at the 
surface may be struck directly by a vessel, a surfacing animal may hit 
the bottom of a vessel, or an animal just below the surface may be cut 
by a vessel's propeller. Animals may survive superficial strikes. These 
interactions are typically associated with large whales, which on 
occasion, are fatally struck by large commercial ships. Although 
smaller cetaceans or pinnipeds are more maneuverable in relation to 
large vessels than are large whales, they may also be susceptible to 
ship strike. The severity of injuries typically depends on the size and 
speed of the vessel, with the probability of death or serious injury 
increasing as vessel speed increases (Knowlton and Kraus, 2001; Laist 
et al., 2001; Vanderlaan and Taggart, 2007; Conn and Silber, 2013). 
Impact forces increase with speed, as does the probability of a strike 
at a given distance due to reduced detection and reaction time (Silber 
et al., 2010; Gende et al., 2011).
    Pace and Silber (2005) found that the probability of death or 
serious injury by ship strike increased rapidly with increasing vessel 
speed. Specifically, the predicted probability of serious

[[Page 15318]]

injury or death increased from 45 to 75 percent as vessel speed 
increased from 10 to 14 kt, and exceeded 90 percent at 17 kt. Higher 
speeds during collisions result in greater force of impact, but higher 
speeds also appear to increase the chance of severe injuries or death 
through increased likelihood of collision by pulling whales toward the 
vessel (Clyne, 1999; Knowlton et al., 1995). In a separate study, 
Vanderlaan and Taggart (2007) analyzed the probability of lethal 
mortality of large whales at a given speed, showing that the greatest 
rate of change in the probability of a lethal injury to a large whale 
as a function of vessel speed occurs between 8.6 and 15 kt. The chances 
of a lethal injury decline from approximately 80 percent at 15 kt to 
approximately 20 percent at 8.6 kt. At speeds below 11.8 kt, the 
chances of lethal injury drop below fifty percent, while the 
probability asymptotically increases toward one hundred percent above 
15 kt.
    In an effort to reduce the number and severity of strikes of the 
endangered North Atlantic right whale (Eubalaena glacialis), NMFS 
implemented speed restrictions in 2008 (73 FR 60173; October 10, 2008). 
These restrictions require that vessels greater than or equal to 65 ft 
(19.8 m) in length travel at less than or equal to 10 kt near key port 
entrances and in certain areas of right whale aggregation along the 
U.S. eastern seaboard. Conn and Silber (2013) estimated that these 
restrictions reduced total ship strike mortality risk levels by 80 to 
90 percent.
    For vessels used in PIFSC research activities, transit speeds 
average 10 kt (but vary from 6-14 kt), while vessel speed during active 
sampling with towed gear is typically only 2-4 kt. At sampling speeds, 
both the possibility of striking a marine mammal and the possibility of 
a strike resulting in serious injury or mortality are discountable. 
Ship strikes, as analyzed in the studies cited above, generally involve 
commercial shipping, which is much more common in both space and time 
than is research activity. Jensen and Silber (2004) summarized ship 
strikes of large whales worldwide from 1975-2003 and found that most 
collisions occurred in the open ocean and involved large vessels (e.g., 
commercial shipping). Commercial fishing vessels, which are similar in 
size to some of the ships used by PIFSC, were responsible for three 
percent of recorded collisions, while only one such incident (0.75 
percent of recorded ship strikes) was reported for a research vessel 
during that time period.
    It is possible for ship strikes to occur while traveling at slow 
speeds. For example, a hydrographic survey vessel traveling at low 
speed (5.5 kt) while conducting mapping surveys off the central 
California coast struck and killed a blue whale in 2009. The State of 
California determined that the whale had suddenly and unexpectedly 
surfaced beneath the hull, with the result that the propeller severed 
the whale's vertebrae, and that this was an unavoidable event. The 
strike represents the only such incident in approximately 540,000 hours 
of similar coastal mapping activity (p = 1.9 x 10-6; 95% CI 
= 0-5.5 x 10-6; NMFS, 2013). In addition, a research vessel 
reported a fatal strike in 2011 of a dolphin in the Atlantic, 
demonstrating that it is possible for strikes involving smaller 
cetaceans or pinnipeds to occur. In that case, the incident report 
indicated that an animal apparently was struck by the vessel's 
propeller as it was intentionally swimming near the vessel. While 
indicative of the type of unusual events that cannot be ruled out, 
neither of these instances represents a circumstance that would be 
considered reasonably foreseeable or that would be considered 
preventable.
    Although the likelihood of vessels associated with research surveys 
striking a marine mammal are low, this rule requires a robust ship 
strike avoidance protocol (see ``Proposed Mitigation''), which we 
believe eliminates any foreseeable risk of ship strike. We anticipate 
that vessel collisions involving PIFSC research vessels, while not 
impossible, represent unlikely, unpredictable events. Furthermore, 
PIFSC has never reported a ship strike associated with fisheries 
research activities conducted or funded by the PIFSC. Given the 
proposed mitigation measures such as the presence of bridge crew 
watching for obstacles at all times (including marine mammals), the 
presence of marine mammal observers on some surveys, (see ``Proposed 
Mitigation'') as well as the small number of research cruises relative 
to commercial ship traffic, we believe that the possibility of ship 
strike is discountable. Moreover, given the relatively slow speeds at 
which PIFSC research vessels travel during sampling activities and 
during transit, even if a marine mammal is struck, it would not likely 
result in serious injury or mortality (Knowlton and Kraus, 2001; Laist 
et al., 2001; Vanderlaan and Taggart, 2007; Conn and Silber, 2013). No 
incidental take resulting from ship strike is anticipated.

Research Gear

    The types of research gear used by PIFSC were described previously 
under ``Detailed Description of Activity.'' Here, we broadly categorize 
the gear as either (1) extremely unlikely to result in marine mammal 
interactions, or (2) gear that may result in marine mammal 
interactions. Former category is not considered further, while those in 
the latter category is discussed below. Marine mammal interaction is 
most likely for trawls and longlines.
    Trawl nets and longlines deployed by PIFSC are similar to gear used 
in various commercial fisheries. There are documented occurrences of 
and potential for marine mammal interaction with these gear types via 
physical contact such as capture or entanglement. Read et al. (2006) 
estimated marine mammal bycatch in U.S. fisheries from 1990-99 and 
derived an estimate of global marine mammal bycatch by expanding U.S. 
bycatch estimates using data on fleet composition from the United 
Nations Food and Agriculture Organization (FAO). Although most U.S. 
bycatch for both cetaceans (84 percent) and pinnipeds (98 percent) 
occurred in gillnets (a type of gear not used by PIFSC), global marine 
mammal bycatch in trawls and longlines is likely substantial given that 
total global bycatch may be hundreds of thousands of individuals per 
year (Read et al., 2006). In addition, global bycatch via longline has 
likely increased, as longlines are currently the most common method of 
capturing swordfish and tuna since the U.N. banned the use of high seas 
driftnets over 2.5 km long in 1991 (high seas driftnets were previously 
often 40-60 km long) (Read, 2008; FAO, 2001).
    Marine mammals are intelligent and inquisitive--when their pursuit 
of prey coincides with human pursuit of the same resources, physical 
interaction with fishing gear may occur (e.g., Beverton, 1985). 
Fishermen and marine mammals are both drawn to areas of high prey 
density, and certain fishing activities may further attract marine 
mammals by providing food (e.g., bait, captured fish, bycatch discards) 
or by otherwise making it easier for animals to feed on a concentrated 
food source. Similarly, near-surface foraging opportunities may present 
an advantage for marine mammals by negating the need for energetically 
expensive deep foraging dives (Hamer and Goldsworthy, 2006). Trawling, 
for example, can make available previously unexploited food resources 
by gathering prey that may otherwise be too fast or deep for normal

[[Page 15319]]

predation, or may concentrate calories in an otherwise patchy landscape 
(Fertl and Leatherwood, 1997). Pilot whales, which are generally 
considered to be teuthophagous (i.e., feeding primarily on squid), were 
commonly observed in association with Atlantic mackerel (Scomber 
scombrus) trawl fisheries from 1977-88 in the northeast U.S. EEZ 
(Waring et al., 1990). Not surprisingly, stomach contents of captured 
whales contained high proportions of mackerel (68 percent of non-trace 
food items), indicating that the ready availability of a novel, 
concentrated, high-calorie prey item resulted in changed dietary 
composition (Read, 1994).
    These interactions can result in injury or death for the animal(s) 
involved and/or damage to fishing gear. Coastal animals, including 
various pinnipeds, bottlenose dolphins, and harbor porpoises, are 
perhaps the most vulnerable to these interactions with set or passive 
fishing gear (e.g., gillnets, traps) the most likely culprit (e.g., 
Beverton, 1985; Barlow et al., 1994; Read et al., 2006; Byrd et al., 
2014; Lewison et al., 2014). However, interactions with trawls and 
longlines may also occur and therefore also warrant mitigation measures 
(NMFS, 2017). Although all marine mammal species have some risk for 
interaction with fishing gear (e.g., Northridge, 1984), the extent of 
interactions is likely dependent on the biology, ecology, and behavior 
of the species involved and the type, location, and nature of the 
fishery.
    Trawl Nets--As described previously, trawl nets are towed nets 
(i.e., active fishing) consisting of a cone-shaped net with a codend or 
bag for collecting the fish and can be designed to fish at the bottom, 
surface, or any other depth in the water column. Here we refer to 
bottom trawls and pelagic trawls (midwater or surface, i.e., any net 
not designed to tend the bottom while fishing). Trawl nets can capture 
or entangle marine mammals. This may occur in bottom trawls, presumably 
when marine mammals feed on fish caught therein, and in pelagic trawls 
which may or may not be coincident with marine mammals feeding 
(Northridge, 1984).
    Capture or entanglement may occur whenever marine mammals are 
swimming near the gear, intentionally (e.g., foraging) or 
unintentionally (e.g., migrating), and any animal captured in a net is 
at significant risk of drowning unless quickly freed. Netting and tow 
lines (also called lazy lines) may also entangle around the a marine 
mammal's head, body, flukes, pectoral fins, or dorsal fin. Interaction 
that does not result in the immediate death of the animal by drowning 
can cause injury (i.e., Level A harassment) or serious injury. 
Constricting lines wrapped around the animal can immobilize the animal 
or injure by cutting into or through blubber, muscles and bone (i.e., 
penetrating injuries) or constricting blood flow to or severing 
appendages. Immobilization of the animal, if it does not result in 
immediate drowning, can cause internal injuries from prolonged stress 
and/or severe struggling and/or impede the animal's ability to feed 
(resulting in starvation or reduced fitness) (Andersen et al., 2008).
    Marine mammal interactions with trawl nets, through capture or 
entanglement, are well-documented. Dolphins are known to attend 
operating nets in order to either benefit from disturbance of the 
bottom or to prey on discards or fish within the net. For example, 
Leatherwood (1975) reported that the most frequently observed feeding 
pattern for bottlenose dolphins in the Gulf of Mexico involved herds 
following working shrimp trawlers, apparently feeding on organisms 
stirred up from the benthos. Bearzi and di Sciara (1997) 
opportunistically investigated working trawlers in the Adriatic Sea 
from 1990-94 and found that ten percent were accompanied by foraging 
bottlenose dolphins. Pelagic trawls appear to have greater potential to 
capture cetaceans, because the nets may be towed at faster speeds, 
these trawls are more likely to target species that are important prey 
for marine mammals (e.g., squid, mackerel), and because pelagic trawls 
often fish in deeper waters with potential for a more diverse 
assemblage of species (Hall et al., 2000).
    Globally, at least 17 cetacean species are known to feed in 
association with trawlers and trawl nets have killed individuals of at 
least 25 species, including several large whales, porpoises, and a 
variety of delphinids (Perez, 2006; Young and Iudicello, 2007; 
Karpouzli and Leaper, 2004; Hall et al., 2000; Fertl and Leatherwood, 
1997; Northridge, 1991; Song et al., 2010). Trawls have killed at least 
eighteen species of seals and sea lions (Wickens, 1995; Perez, 2006; 
Zeeberg et al., 2006). Records of direct interaction between trawl nets 
and marine mammals (both cetaceans and pinnipeds) exist where trawling 
and animals co-occur. A lack of recorded interactions where animals are 
known to be present may indicate simply that trawling is absent or are 
an insignificant component of fisheries in that region or that 
interactions were not observed, recorded, or reported.
    In evaluating risk relative to a specific fishery (or comparable 
research survey), one must consider the size of the net as well as 
frequency, timing, and location of deployment. These considerations 
inform determinations of whether marine mammal take is likely. Other 
NMFS science centers have records of marine mammal take from bottom, 
surface, and midwater trawl nets. However, PIFSC has no history of 
marine mammal take from trawl nets used during PIFSC fisheries and 
ecosystem surveys.
    Longlines--Longlines are a passive fishing technique of consisting 
of strings of baited hooks that are either anchored to the bottom 
(targeting groundfish), or are free-floating (targeting pelagic 
species). PIFSC does not utilize free-floating longlines. Any longline 
generally consists of a mainline from which leader lines (gangions) 
with baited hooks branch off at a specified interval. Bottom longlines 
may be of monofilament or multifilament natural or synthetic lines.
    The longline is left to passively fish (i.e, soak) for a set period 
of time before the vessel returns to retrieve the gear. Two or more 
floats act as visual markers to facilitate gear retrieval. Longlines 
may also utilize radio beacons to assist gear detection. Radio beacons 
are particularly import for pelagic longlines that may drift a 
significant distance from the deployment location.
    Marine mammals may be hooked or entangled in longline gear, with 
interactions potentially resulting in death due to drowning, 
strangulation, severing of carotid arteries or the esophagus, 
infection, an inability to evade predators, or starvation due to an 
inability to catch prey (Hofmeyr et al., 2002), although it is more 
likely that marine mammals will survive if they can reach the surface 
to breathe. Injuries, including serious injury, may consist of 
lacerations and puncture wounds. Animals may attempt to depredate on 
either bait or catch, with subsequent hooking, or may become 
accidentally entangled. As described for trawls, entanglement can lead 
to constricting lines wrapped around the animals and/or immobilization, 
and even if entangling materials are removed the wounds caused may 
continue to weaken the animal or allow further infection (Hofmeyr et 
al., 2002). Large whales may become entangled in a longline and then 
break free with a portion of gear trailing, resulting in alteration of 
swimming energetics due to drag and ultimate loss of fitness and 
potential mortality (Andersen et al., 2008). Weight of the gear can 
cause entangling lines to further constrict and further injure the 
animal. Hooking injuries and ingested gear are most

[[Page 15320]]

common in small cetaceans and pinnipeds, but have been observed in 
large cetaceans (e.g., sperm whales). The severity of the injury 
depends on the species, whether ingested gear includes hooks, whether 
the gear works its way into the gastrointestinal (GI) tract, whether 
the gear penetrates the GI lining, and the location of the hooking 
(e.g., embedded in the animal's stomach or other internal body parts) 
(Andersen et al., 2008). Bottom longlines pose less of a threat to 
marine mammals due to their deployment on the ocean bottom but can 
still result in entanglement in buoy lines or hooking as the line is 
either deployed or retrieved. The rate of interaction between longline 
fisheries and marine mammals depends on the degree of overlap between 
longline effort and species distribution, hook style and size, type of 
bait and target catch, and fishing practices (such as setting/hauling 
during the day or at night).
    As was noted for trawl nets, many species of cetaceans and 
pinnipeds are documented to have been killed by longlines, including 
several large whales, porpoises, a variety of delphinids, seals, and 
sea lions (Perez, 2006; Young and Iudicello, 2007; Northridge, 1984, 
1991; Wickens, 1995). Records of direct interaction between longlines 
and marine mammals (both cetaceans and pinnipeds) exist where longline 
fishing and animals co-occur. A lack of recorded interactions where 
animals are known to be present may indicate simply that longlining is 
absent or an insignificant component of fisheries in that region or 
that interactions were not observed, recorded, or reported.
    In evaluating risk relative to a specific fishery (or research 
survey), one must consider the length of the line and number of hooks 
deployed as well as frequency, timing, and location of deployment. 
These considerations inform determinations of whether interaction with 
marine mammals is likely. PIFSC has not recorded marine mammal 
interactions or takes with any longline survey. While a lack of 
historical interactions does not in and of itself indicate that future 
interactions are unlikely, we believe that the historical record, 
considered in context with the frequency and timing of these 
activities, as well as mitigation measures employed indicate that 
future marine mammal interactions with these gears would be uncommon.
    Other research gear--PIFSC conducts a variety of instrument 
deployments and insular fish abundance surveys between 50m and 600m and 
bottomfish essential fish habitat (EFH) surveys between 100-400m (see 
Table 1.1 in PIFSC's application) using gear similar to that used in a 
variety of commercial fisheries. Thus such research gear has the 
potential for entangling marine mammals surfacing from dives. Such 
``instrument deployments'' include aMOUSS, BotCam, BRUVS deployed from 
a vessel and connected to the surface with a line to a float or vessel; 
environmental sampling instruments deployed by line such as CTD; baited 
or unbaited bottom traps such as lobster traps and fish traps deployed 
from a vessel and connected to the surface with line to a float.
    All other gears used in PIFSC fisheries research (e.g., various 
plankton nets, CTDs, remotely operated vehicles (ROVs)) do not have the 
expected potential for marine mammal interactions. PIFSC has no record 
of marine mammal interaction or takes from these types of gear. 
Specifically, we consider CTDs, ROVs, small surface trawls, plankton 
nets, other small nets, camera traps, dredges, and vertically deployed 
or towed imaging systems to be no-impact gear types. Unlike trawl nets, 
seine nets, and longline gear, which are used in both scientific 
research and commercial fishing applications, these other gears are not 
considered similar or analogous to any commercial fishing gear and are 
not designed to capture any commercially salable species, or to collect 
any sort of sample in large quantities. They are not considered to have 
the potential to take marine mammals primarily because of their design 
or how they are deployed. For example, CTDs are typically deployed in a 
vertical cast on a cable and have no loose lines or other entanglement 
hazards. A Bongo net is typically deployed on a cable, whereas neuston 
nets (these may be plankton nets or small trawls) are often deployed in 
the upper one meter of the water column; either net type has very small 
size (e.g., two bongo nets of 0.5 m\2\ each or a neuston net of 
approximately 2 m\2\) and no trailing lines to present an entanglement 
risk. These other gear types are not considered further in this 
document.

Acoustic Effects

    Detailed descriptions of the potential effects of PIFSC's use of 
acoustic sources are provided in other Federal Register notices for 
incidental take regulations issued to other NMFS Science Centers (e.g., 
the ``Acoustic Effects'' section of the proposed rule for the taking of 
marine mammals incidental to NMFS Alaska Fisheries Science Center 
fisheries research (83 FR 37660; August 1, 2018) and the ``Potential 
Effects of Underwater Sound'' section of the proposed rule for the 
taking of marine mammals incidental to NMFS Southeast Fisheries Science 
Center research (84 FR 6603; February 27, 2019)). No significant new 
information is available, and those discussions provide the necessary 
adequate and relevant information regarding the potential effects of 
PIFSC's specified activity on marine mammals and their habitat. 
Therefore, we refer the reader to those documents rather than repeating 
the information here.
    Exposure to sound through the use of active acoustic systems for 
research purposes may result in Level B harassment. However, as 
detailed in the previously referenced discussions, Level A harassment 
in the form of permanent threshold shift (PTS) is extremely unlikely to 
occur, and we consider such effects discountable. With specific 
reference to Level B harassment that may occur as a result of acoustic 
exposure, we note that the analytical methods described in the 
incidental take regulations for other NMFS Science Centers are retained 
here. However, the state of science with regard to our understanding of 
the likely potential effects of the use of systems like those used by 
PIFSC has advanced in recent years, as have readily available 
approaches to estimating the acoustic footprints of such sources, with 
the result that we view this analysis as highly conservative. Although 
more recent literature provides documentation of marine mammal 
responses to the use of these and similar acoustic systems (e.g., 
Cholewiak et al., 2017; Quick et al., 2017; Varghese et al., 2020), the 
described responses do not generally comport with the degree of 
severity that should be associated with Level B harassment, as defined 
by the MMPA. We retain the analytical approach described in the 
incidental take regulations for other NMFS Science Centers for 
consistency with existing analyses and for purposes of efficiency here, 
and consider this acceptable because the approach provides a 
conservative estimate of potential incidents of Level B harassment (see 
``Estimated Take'' section of this document). In summary, while we 
propose to authorize the amount of take by Level B harassment indicated 
in the ``Estimated Take'' section, and consider these potential takings 
at face value in our negligible impact analysis, it is uncertain 
whether use of these acoustic systems are likely to cause take at all, 
much less at the estimated levels.

[[Page 15321]]

Potential Effects of Visual Disturbance

    Hawaiian monk seals occur in the HARA and WCPRA. Hawaiian monk 
seals use numerous sites in the MHI and the NWHI to haul out (e.g., 
sandy beaches, rocky outcroppings, exposed reefs). Here, the physical 
presence and sounds of researchers walking by or passing nearby in 
small boats may disturb animals present. PIFSC expects some of these 
animals will exhibit a behavioral response to the visual stimuli (e.g., 
including alert behavior, movement, vocalizing, or flushing). NMFS does 
not consider the lesser reactions (e.g., alert behavior) to constitute 
harassment. These events are expected to be infrequent and cause only a 
temporary disturbance on the order of minutes. Monitoring results from 
other activities involving the disturbance of pinnipeds and relevant 
studies of pinniped populations that experience more regular vessel 
disturbance indicate that individually significant or population level 
impacts are unlikely to occur (e.g., Henry and Hammil, 2001).
    In areas where disturbance of haulouts due to periodic human 
activity (e.g., researchers approaching on foot, passage of small 
vessels, maintenance activity) occurs, monitoring results have 
generally indicated that pinnipeds typically move or flush from the 
haulout in response to human presence or visual disturbance, although 
some individuals typically remain hauledout (e.g., SCWA, 2012). Upon 
the occurrence of low-severity disturbance (i.e., the approach of a 
vessel or person as opposed to an explosion or sonic boom), pinnipeds 
typically exhibit a continuum of responses, beginning with alert 
movements (e.g., raising the head), which may then escalate to movement 
away from the stimulus and possible flushing into the water. Flushed 
pinnipeds typically re-occupy the haulout within minutes to hours of 
the stimulus (Acevedo-Gutierrez and Johnson 2007).
    In a popular tourism area of the Pacific Northwest where human 
disturbances occurred frequently, past studies observed stable 
populations of seals over a twenty-year period (Calambokidis et al., 
1991). Despite high levels of seasonal disturbance by tourists using 
both motorized and non-motorized vessels, Calambokidis et al. (1991) 
observed an increase in site use (pup rearing) and classified this area 
as one of the most important pupping sites for seals in the region. 
Another study observed an increase in seal vigilance when vessels 
passed the haulout site, but then vigilance relaxed within ten minutes 
of the vessels' passing (Fox, 2008). If vessels passed frequently 
within a short time period (e.g., 24 hours), a reduction in the total 
number of seals present was also observed (Fox, 2008).
    Level A harassment, serious injury, or mortality could likely only 
occur as a result of trampling in a stampede (a potentially dangerous 
occurrence in which large numbers of animals succumb to mass panic and 
rush away from a stimulus) or abandonment of pups. Pups could be 
present at times during PIFSC research effort, but PIFSC researchers 
take precautions to minimize disturbance and prevent any possibility of 
stampedes, including choosing travel routes as far away from hauledout 
pinnipeds as possible and by moving sample site locations to avoid 
consistent haulout areas. In addition, Hawaiian monk seals do not 
typically haul out in large groups where stampedes would be of concern.
    Disturbance of pinnipeds caused by PIFSC survey activities would be 
expected to last for only short periods of time, separated by 
significant amounts of time in which no disturbance occurred. Because 
such disturbance is sporadic, rather than chronic, and of low 
intensity, individual marine mammals are unlikely to incur any 
detrimental impacts to vital rates or ability to forage and, thus, loss 
of fitness. Correspondingly, even local populations, much less the 
overall stock of animals, are extremely unlikely to accrue any 
significantly detrimental impacts.

Anticipated Effects on Marine Mammal Habitat

    Effects to Prey--In addition to direct, or operational, 
interactions between fishing gear and marine mammals, indirect (i.e., 
biological or ecological) interactions occur as well, in which marine 
mammals and fisheries both utilize the same resource, potentially 
resulting in competition that may be mutually disadvantageous (e.g., 
Northridge, 1984; Beddington et al., 1985; Wickens, 1995). Marine 
mammal prey varies by species, season, and location and, for some 
marine mammals, is not well documented. PIFSC fisheries research 
removals of species commonly utilized by marine mammals are relatively 
low. Prey of sei whales and blue whales are primarily zooplankton, 
which are targeted by PIFSC fisheries research with collection only on 
the order of liters, so the likelihood of research activities changing 
prey availability is low and impact negligible to none. Humpback whales 
do not feed within the PIFSC region of fisheries research, so there is 
no effect (Herman et al., 2007). PIFSC fisheries research activities 
may affect sperm whale prey (squid), but this is expected to be minor 
due to the insignificant amount of squid removed through fisheries 
research (i.e., hundreds of pounds). There may be some minor overlap 
between the RAMP survey removals of a variety of reef fishes and the 
Insular Fish Abundance Estimation Comparison Surveys. By example, in 
the main Hawaiian Islands, the majority of sampling for these surveys 
is at the periphery of monk seal foraging habitat and is a tiny 
fraction of what is taken by monk seals or by apex predatory fish or 
non-commercial fisheries (Sprague et al. 2013, Kobayashi and Kawamoto 
1995). In the case of false killer whale consumption of tunas, mahi, 
and ono, there may be some minor overlap with fisheries research 
removals in the pelagic longline research. However, here the removal by 
PIFSC fisheries research, regardless of season and location is minor 
relative to that taken through commercial fisheries. For example, 
commercial fisheries catches for most pelagic species typically range 
from the hundreds to thousands of metric tons, whereas the catch in 
similar fisheries research activities would only occasionally range as 
high as hundreds to thousands of pounds in any particular year (see 
Sections 4.2.3 and 4.3.3 of the PIFSC EA for more information on fish 
catch during research surveys and commercial harvest).
    Research catches are also distributed over a wide area because of 
the random sampling design covering large sample areas. Fish removals 
by research are therefore highly localized and unlikely to affect the 
spatial concentrations and availability of prey for any marine mammal 
species. The overall effect of research catches on marine mammals 
through competition for prey may therefore be considered insignificant 
for all species.
    Acoustic Habitat--Acoustic habitat is the soundscape--which 
encompasses all of the sound present in a particular location and time, 
as a whole--when considered from the perspective of the animals 
experiencing it. Animals produce sound for, or listen for sounds 
produced by, conspecifics (communication during feeding, mating, and 
other social activities), other animals (finding prey or avoiding 
predators), and the physical environment (finding suitable habitats, 
navigating). Together, sounds made by animals and the geophysical 
environment (e.g., produced by earthquakes, lightning, wind, rain,

[[Page 15322]]

waves) make up the natural contributions to the total acoustics of a 
place. These acoustic conditions, termed acoustic habitat, are one 
attribute of an animal's total habitat.
    Soundscapes are also defined by, and acoustic habitat influenced 
by, the total contribution of anthropogenic sound. This may include 
incidental emissions from sources such as vessel traffic, or may be 
intentionally introduced to the marine environment for data acquisition 
purposes (as in the PIFSC's use of active acoustic sources). 
Anthropogenic noise varies widely in its frequency content, duration, 
and loudness and these characteristics greatly influence the potential 
habitat-mediated effects to marine mammals (please also see the 
discussion on masking in the Acoustic Effects'' section of the proposed 
rule for the taking of marine mammals incidental to NMFS Alaska 
Fisheries Science Center fisheries research (83 FR 37660; August 1, 
2018)), which may range from local effects for brief periods of time to 
chronic effects over large areas and for long durations. Depending on 
the extent of effects to habitat, animals may alter their 
communications signals (thereby potentially expending additional 
energy) or miss acoustic cues (either conspecific or adventitious). For 
more detail on these concepts see, e.g., Barber et al., 2010; 
Pijanowski et al., 2011; Francis and Barber, 2013; Lillis et al., 2014.
    Problems arising from a failure to detect cues are more likely to 
occur when noise stimuli are chronic and overlap with biologically 
relevant cues used for communication, orientation, and predator/prey 
detection (Francis and Barber, 2013). As described above (``Acoustic 
Effects''), the signals emitted by PIFSC active acoustic sources are 
generally high frequency, of short duration, and transient. These 
factors mean that the signals will attenuate rapidly (not travel over 
great distances), may not be perceived or affect perception even when 
animals are in the vicinity, and would not be considered chronic in any 
given location. PIFSC use of these sources is widely dispersed in both 
space and time. In conjunction with the prior factors, this means that 
it is highly unlikely that PIFSC use of these sources would, on their 
own, have any appreciable effect on acoustic habitat. Sounds emitted by 
PIFSC vessels would be of lower frequency and continuous, but would 
also be widely dispersed in both space and time. PIFSC vessel traffic--
including both sound from the vessel itself and from the active 
acoustic sources--is of very low density compared to commercial 
shipping traffic or commercial fishing vessels and would therefore 
represent an insignificant incremental increase in the total amount of 
anthropogenic sound input to the marine environment.
    Physical Habitat--PIFSC conducts some bottom trawling, which may 
physically damage seafloor habitat. In addition, PIFSC fishery research 
activities and funded fishery research activities use bottom contact 
fishing gear, including deep-set longline, lobster traps, and 
settlement traps. These fishing gears contact the seafloor and may 
cause physical damage but the impacts are localized and minimal as this 
type of gear is fixed in position rather than towed across the sea 
floor. Physical damage may include furrowing and smoothing of the 
seafloor as well as the displacement of rocks and boulders, and such 
damage can increase with multiple contacts in the same area 
(Schwinghamer et al., 1998; Kaiser et al., 2002; Malik and Mayer, 2007; 
NRC, 2002). The effects of bottom contact gear differ in each type of 
benthic environment. In sandy habitats with strong currents, the 
furrows created by mobile bottom contact gear quickly begin to erode 
because lighter weight sand at the edges of furrows can be easily moved 
by water back towards the center of the furrow (NRC, 2002). Duration of 
effects in these environments therefore tend to be very short because 
the terrain and associated organisms are accustomed to natural 
disturbance. By contrast, the physical features of more stable hard 
bottom habitats are less susceptible to disturbance, but once damaged 
or removed by fishing gear, the organisms that grow on gravel, cobbles, 
and boulders can take years to recover, especially in deeper water 
where there is less natural disturbance (NRC, 2002). However, the area 
of benthic habitat affected by PIFSC research each year would be a very 
small fraction of total area of benthic habitat in the four research 
areas and effects are not expected to occur in areas of particular 
importance.
    Damage to seafloor habitat may also harm infauna and epifauna 
(i.e., animals that live in or on the seafloor or on structures on the 
seafloor), including corals (Schwinghamer et al., 1998; Collie et al., 
2000; Stevenson et al., 2004). In general, recovery from biological 
damage varies based on the type of fishing gear used, the type of 
seafloor surface (i.e., mud, sand, gravel, mixed substrate), and the 
level of repeated disturbances. Recovery timelines of 1-18 months are 
expected. However, repeated disturbance of an area can prolong the 
recovery time (Stevenson et al., 2004), and recovery of corals may take 
significantly longer than 18 months.
    The Deep Coral and Sponge Research Survey collect small pieces of 
coral for DNA samples, voucher specimens, and paleoclimate samples. The 
combined sampling of these studies amounts to about 5.5 pounds/year. 
Together, these coral samples comprise a small percentage of the total 
population of coral colonies (see Section 4.2.7 of the PIFSC EA). The 
RAMP Survey collects up to 500 samples per year of corals (including 
ESA-listed species), coral products, algae and algal products, and 
sessile invertebrates. The NMFS Pacific Islands Regional Office has 
issued a Biological Opinion concluding that PIFSC surveys are not 
likely to jeopardize the continued existence of any coral species 
taken.
    As described in the preceding, the potential for PIFSC research to 
affect the availability of prey to marine mammals or to meaningfully 
impact the quality of physical or acoustic habitat is considered to be 
insignificant for all species. Effects to marine mammal habitat will 
not be discussed further in this document.

Estimated Take

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

[[Page 15323]]

Estimated Take Due to Gear Interaction

    The use of historical interactions as a basis to estimate future 
take of marine mammals in fisheries research gear has been utilized in 
the LOA applications and rules of other NMFS Fisheries Science Centers 
(e.g., Southwest (SWFSC), Northwest (NWFSC)). However, because PIFSC 
has no history of marine mammal take in any of the gear used during its 
fisheries and ecosystem research, additional factors must be 
considered. Instead, NMFS used information from commercial fisheries, 
other NMFS Fisheries Science Centers operations, and published take as 
described below.
    NMFS believes it is appropriate to include estimates for future 
incidental takes of a number of species that have not been taken by 
PIFSC historically, but inhabit the same areas and show similar types 
of behaviors and vulnerabilities to gear used by other NMFS Fisheries 
Science Centers and used in commercial fisheries (based on the 2019 
List of Fisheries (LOF), see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries). 
A number of factors were taken into account to determine whether a 
species may have a similar vulnerability to certain types of gear as 
species taken in commercial gear and research gear elsewhere (e.g., 
distribution, density, abundance, behavior, feeding ecology, travel in 
groups, and common association with other species historically taken in 
commercial gear or other Fisheries Science Centers). While such take 
could potentially occur, NMFS believes that any occurrences would 
likely be rare given that no such take in PIFSC research has occurred 
(despite many years of the same or similar surveys occurring). 
Moreover, marine mammal behavioral and ecological characteristics 
reduce the risk of incidental take from research gear, and the required 
mitigation measures reduce the risk of incidental take.
    As background to the process of determining which species not 
historically taken may have sufficient vulnerability to capture in 
PIFSC gear to justify inclusion in these proposed regulations, we note 
that the PIFSC is NMFS's research arm in the central and western 
Pacific Ocean and may be considered as a leading source of expert 
knowledge regarding marine mammals (e.g., behavior, abundance, density) 
in the areas where they operate. The species for which the take request 
was formulated were selected by the PIFSC, and we have concurred with 
these decisions.
    While PIFSC has not historically taken marine mammal species in its 
longline gear, it is well documented that some species potentially 
encountered during PIFSC surveys are taken in commercial longline 
fisheries. In order to evaluate the potential vulnerability of species 
to trawl and longline fishing gear and entanglement from instrument 
deployment and traps, we first consulted the List of Fisheries (LOF). 
The LOF classifies U.S. commercial fisheries into one of three 
categories according to the level of incidental marine mammal M/SI that 
occurs on an annual basis over the most recent five-year period 
(generally) for which data has been analyzed: Category I, frequent 
incidental M/SI; Category II, occasional incidental M/SI; and Category 
III, remote likelihood of or no known incidental M/SI. We provide 
summary information, as presented in the 2020 LOF (85 FR 21079; April 
16, 2020), in Table 6. In order to simplify information presented, and 
to encompass information related to other similar species from 
different locations, we group marine mammals by genus (where there is 
more than one member of the genus found in U.S. waters). Where there 
are documented incidents of M/SI incidental to relevant commercial 
fisheries, we note whether we believe those incidents provide 
sufficient basis upon which to infer vulnerability to capture in PIFSC 
research gear. For a listing of all Category I, II, and II fisheries 
using relevant gears, associated estimates of fishery participants, and 
specific locations and fisheries associated with the historical 
fisheries takes indicated in Table 4 below, please see the 2020 LOF. 
For specific numbers of marine mammal takes associated with these 
fisheries, please see the relevant SARs. More information is available 
online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries and https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

        Table 6--U.S. Commercial Fisheries Interactions for Trawl and Longline Gear for Relevant Species
----------------------------------------------------------------------------------------------------------------
                                                                      Vulnerability                Vulnerability
                      Species \1\                         Trawl \2\   inferred? \3\  Longline \2\   inferred \3\
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin....................................            N              Y             Y              Y
False killer whale....................................            N              N             Y              Y
Humpback whale........................................            N              N             Y              Y
Kogia spp.............................................            N              N             Y              Y
Pygmy killer whale....................................            N              N             Y              Y
Risso's dolphin.......................................            N              N             Y              Y
Rough-toothed dolphin.................................            N              Y             Y              Y
Short-finned pilot whale..............................            N              N             Y              Y
Sperm whale...........................................            N              N             Y              Y
Striped dolphin.......................................            N              Y             Y              Y
Cuvier's beaked whale.................................            N              N             Y              Y
Blainville's beaked whale.............................            N              N             Y              Y
Pantropical spotted dolphin...........................            N              Y             N              Y
Spinner dolphin.......................................            N              Y             N              Y
----------------------------------------------------------------------------------------------------------------
\1\ Please refer to Table 3 for taxonomic reference.
\2\ Indicates whether any member of the species has documented incidental M/SI in a U.S. fishery using that gear
  in the most recent five-year timespan for which data is available.
\3\ Indicates whether NMFS has inferred that a species not historically taken by PIFSC has the potential to be
  taken in the future based on records of marine mammals taken by U.S. commercial fisheries. Y = yes, N = no.

    Information related to incidental M/SI in relevant commercial 
fisheries is not, however, the sole determinant of appropriateness for 
authorizing take incidental to PIFSC survey operations. Numerous 
factors (e.g., species-specific

[[Page 15324]]

knowledge regarding animal behavior, overall abundance in the 
geographic region, density relative to PIFSC survey effort, feeding 
ecology, propensity to travel in groups commonly associated with other 
species historically taken) were considered by the PIFSC to determine 
whether a species not previously taken by PIFSC may be taken during 
future research activities. In some cases, NMFS have determined that 
species without documented M/SI may nevertheless be vulnerable to 
capture in PIFSC research gear. Those species with no records of 
historical interaction with PIFSC research gear and no documented M/SI 
in relevant commercial fisheries, and for which the PIFSC has not 
requested the authorization of incidental take, are not considered 
further in this section. The PIFSC believes generally that any sex or 
age class of those species for which take authorization is requested 
could be taken.
    To estimate the potential number of takes by M/SI from PIFSC 
research gear, we first determine which species may have vulnerability 
to capture by gear type. Of those species, we then determine whether 
any may have similar propensity to be taken by a given gear as a 
historically-taken species in U.S. commercial fisheries (inferred 
vulnerability). For these species, we assume it is possible that take 
could occur while at the same time contending that, absent significant 
range shifts or changes in habitat usage, capture of a species not 
historically taken by PIFSC research activities would likely be a very 
rare event. Therefore, we assume that take by PIFSC would be a rare 
event such that authorization of a single take over the five-year 
period, for each region where the gear is used and the species is 
present, is likely sufficient given the low risk of marine mammals 
interacting with PIFSC gear.
    Longline--While longline research would only be conducted outside 
of the longline exclusion areas (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/false-killer-whale-take-reduction), 
several species of small cetaceans were deemed to have a similar 
vulnerability to longline gear as some historically-taken species by 
other NMFS Fisheries Science Centers or by commercial fisheries using 
factors outlined above. The commercial fisheries, HI deep-set longline 
(Category 1) and the HI shallow-set longline and American Samoa 
longline (both Category II) fisheries, report taking marine mammals. 
The longline fisheries the LOF identifies having taken marine mammals 
on the High Seas are the Western Pacific Pelagic (HI Deep-set 
component, Category 1) and Western Pacific Pelagic (HI Shallow-set 
component, Category II).
    PIFSC assumes any take of marine mammals in longline fisheries 
research activities will be a rare occurrence. As stated above, NMFS 
expects that take of marine mammals by M/SI by PIFSC would be a rare 
event such that no more than a single take of each species/stock by M/
SI over the five-year period, is reasonably likely to occur. Therefore, 
PIFSC requested one take in longline gear over the five-year 
authorization period throughout the PIFSC research area for each of the 
following species: Bottlenose dolphin (Hawai[revaps]i pelagic stock), 
Blainville's beaked whale (Hawai[revaps]i pelagic stock), Cuvier's 
beaked whale (Hawai[revaps]i pelagic stock), Kogia spp. (Hawai[revaps]i 
stocks), false killer whale (Hawai[revaps]i pelagic stock), Pantropical 
spotted dolphin (all stocks), pygmy killer whale (Hawai[revaps]i 
stock), rough toothed dolphin (Hawai[revaps]i stock), Risso's dolphin 
(Hawai[revaps]i stock), short-finned pilot whale (Hawai[revaps]i 
stock), and striped dolphin (Hawai[revaps]i stock) (Table 5). While the 
LOF includes commercial fishery takes of false killer whales and rough-
toothed dolphins from the respective American Samoa stocks, PIFSC is 
not requesting take by M/SI of these species/stocks because they do not 
anticipate conducting longline research anywhere within the range of 
these species/stocks throughout the time period addressed by this 
application (e.g., longline surveys in the WCPRA would occur within 500 
nmi of the HARA, which is at least 1600 nmi from the ASARA and outside 
of the range of the American Samoa stocks of false killer whales and 
rough-toothed dolphins). Additionally, the LOF includes commercial 
fishery takes of the MHI insular stock of false killer whales, but 
PIFSC will not be conducting longline research within the stock's 
range, and so is not requesting M&SI/Level A takes of this stock. 
Spinner dolphins have not been reported taken in Hawai[revaps]i based 
longline fisheries in the LOF. The PIFSC is therefore not requesting 
any take of this species in analogous fisheries research gear.
    While PIFSC has not historically taken large whales in its longline 
gear, these species are taken in commercial longline fisheries. There 
are two large whale species that have been taken by commercial longline 
fisheries and for which PIFSC is requesting a single take each over the 
five-year authorization period in longline gear: The humpback whale and 
the sperm whale. Both of these species are listed as endangered under 
the ESA and thus by definition, depleted under the MMPA. Although large 
whale species could become entangled in longline gear, the probability 
of interaction with PIFSC longline gear is extremely low considering a 
much lower level of survey effort and shorter duration sets relative to 
that of commercial fisheries. For example, in 2014 approximately 47.1 
million hooks were deployed in commercial longline fishing in the PIFSC 
research areas (see https://www.fisheries.noaa.gov/resource/data/hawaii-longline-fishery-logbook-summary-reports); in contrast PIFSC 
proposes to deploy up to 73,500 hooks/year or 0.0015 percent of the 
effort in these commercial fisheries. The mitigation measures taken by 
PIFSC are also expected to reduce the likelihood of taking large whales 
(see Proposed Mitigation section) Although there is only a limited 
potential for take, PIFSC is requesting one take of humpback whale 
(central North Pacific stock) in longline gear and one take of a sperm 
whale (Hawai[revaps]i stock) by M/SI based on analogy with commercial 
fisheries over the five-year authorization period of this application.
    Trawl--Although PIFSC has never taken small delphinids in a pelagic 
midwater trawl such as an Isaacs-Kidd or Cobb trawl, and no commercial 
trawl fisheries in PIFSC research areas have reported takes, there is a 
remote possibility such a take could occur. This research targets very 
small pelagic species (e.g., micronekton, pelagic larvae) not likely to 
attract foraging small delphinids. Thus incidental catch of a small 
delphinid is unlikely in either technique but even less so for the 
Isaacs-Kidd trawl due to the very small opening (about 3 m x 3 m) 
whereas the mouth of the PIFSC Cobb trawls are about 10 m x 10 m. 
However, to address a rare situation or event, PIFSC requests one take 
each of the following small delphinids in trawl gear over the five year 
period of this application: Bottlenose dolphin (all stocks), rough-
toothed dolphin (Hawai[revaps]i stock), spinner dolphin (all stocks), 
Pantropical spotted dolphin (all stocks), and striped dolphin 
(Hawai[revaps]i stock).
    Instrument and Trap Deployments--Humpback whales inhabit shallow 
waters, typically within the 100-fathom isobaths in the HARA (Baird et 
al., 2000). PIFSC conducts a variety of instrument deployments and 
insular fish abundance surveys between 50 m and 600 m and bottomfish 
EFH surveys between 100-400 m (see Table 1.1 in PIFSC's application) 
using gear similar to that used in a variety of commercial fisheries. 
Thus such research gear has the potential for entangling humpback 
whales surfacing from dives. Such

[[Page 15325]]

instruments include aMOUSS, BotCam, BRUVS deployed from a vessel and 
connected to the surface with a line to a float or vessel; 
environmental sampling instruments deployed by line; and baited or 
unbaited bottom traps such as lobster traps and fish traps deployed 
from a vessel and connected to the surface with line to a float.
    Therefore PIFSC is requesting one take of humpback whale (central 
North Pacific stock) in gear associated with deployed instruments and 
traps. In addition, based on a similarity in behavior, several species 
of ``curious'' small delphinids have the potential for becoming 
entangled in gear associated with instrument deployments. PIFSC has 
established mitigation measures already in place to reduce potential 
interactions (e.g., no deployment when marine mammals are known to be 
in the immediate area). Because there is a remote chance such 
entanglement may occur when an animal investigates such gear, PIFSC 
requests one take each over the five-year authorization period of each 
of the following small delphinid species: Bottlenose dolphin (all 
stocks), rough-toothed dolphin (Hawai[revaps]i stock), spinner dolphin 
(all stocks), and Pantropical spotted dolphin (all stocks) in 
``instrument deployment'' gears.
    Other gear--PIFSC considered the risk of interaction with marine 
mammals for all the research gear and instruments it uses, but PIFSC 
did not request incidental takes for research gear other than midwater 
trawls, longline, instrument deployments, and traps. PIFSC acknowledges 
that by having hooks, nets, lines, or vessels in the water there is a 
potential for incidental take of marine mammals during research 
activities. However, many of the fisheries and ecosystem research 
activities conducted by PIFSC involve gear or instruments that do not 
present a large enough risk to be included as part of the mortality, 
serious injury, or Level A harassment take request. These include gear 
and instruments that are operated by hand or close enough to the vessel 
that they can be continuously observed and controlled such as dip nets, 
scoop nets, handheld gear and instruments used by SCUBA divers or free 
divers (cameras, transect lines, and spears), environmental data 
collectors deployed or attached by hand to the reef, marine debris 
removal tools (knives and float bags), and small surface net trawls 
adjacent to the vessel. Other gear or instruments that are used so 
infrequently, operate so slowly, or carried out with appropriate 
mitigation measures so as not to present a reasonable risk of 
interactions with marine mammals include: Autonomous vehicles such as 
gliders, autonomous underwater vehicles (AUVs), unmanned aerial 
vehicles (UAVs), unmanned aircraft systems (UASs), and towed optical 
assessment devices (TOADs); submersibles; towed-divers; troll fishing; 
larval settlement traps temporarily installed on the reef; expendable 
bathythermographs (XBTs); and environmental data collectors temporarily 
deployed from a vessel to the seafloor and then retrieved remotely such 
as high-frequency recording packages (HARPs) and ecological acoustic 
readers (EARs). Please refer to Table 1.1 and Appendix A in PIFSC's 
application for a list of the research projects that use this gear and 
descriptions of their use.
    The gear and instruments listed above are not considered to have a 
reasonable potential to take marine mammals given their physical 
characteristics, how they are fished, and the environments where they 
are used. There have been no marine mammal mortalities, serious 
injuries, or other Level A takes associated with any of these gear 
types. Because of this, PIFSC does not expect these activities to 
result in take of marine mammals in the PIFSC research areas, and as 
such is not requesting marine mammal take for these gears or 
instruments.
    Bottomfishing--There is evidence that cetaceans and Hawaiian monk 
seals occasionally pursue fish caught on various hook-and-line gear 
(depredation of fishing lines) deployed in commercial and non-
commercial fisheries across Hawai[revaps]i (Nitta and Henderson 1993, 
Kobayashi and Kawamoto 1994). This depredation behavior, which is 
documented as catch loss from the hook-and-line gear, may be beneficial 
to the marine mammal in providing prey but it also opens the 
possibility for the marine mammal to be hooked or entangled in the 
gear. PIFSC gave careful consideration to the potential for including 
incidental take requests for marine mammals in bottom handline 
(bottomfishing) gear because of the planned increase in research effort 
using that gear in the Insular Fish Abundance Estimation Comparison 
Survey (from approximately 700 sets per year to over 7000 sets per 
year). PIFSC has not had any interactions in the past with marine 
mammals while conducting research with bottomfishing gear in the MHI.
    Bottlenose dolphins have been identified as the primary species 
associated with depredation of catch in the bottomfish fishery and they 
appear to be adept at pulling hooked fish from the gear without 
breaking the line or taking hooks off the line (Kobayashi and Kawamoto 
1994). It is not known if these interactions result in injury, serious 
injury, or mortality of bottlenose dolphins or other cetaceans (Caretta 
et al., 2015). No mortality or serious injuries of monk seals have been 
attributed to the MHI bottomfish handline fishery (Caretta et al., 
2019). In 2016, 11 seal hookings were documented and all were 
classified as non-serious injuries, although six of these would have 
been deemed serious had they not been mitigated (Henderson 2017, Mercer 
2018). The hook-and-line rigging used to target ulua (jacks, Caranx 
spp.) are typical of shoreline fisheries that are distinct from the 
bottomfishing gear and methods used by PIFSC during its fisheries and 
ecosystem research. Although there are some similarities between the 
shoreline fishery and the bottomfishing gear used by PIFSC (e.g., 
circle hooks), the general size and the way the hooks are rigged (e.g., 
baits, leaders, weights, tackle) are typically different and probably 
present different risks of incidental hooking to monk seals. Ulua hooks 
are generally much larger circle hooks than PIFSC uses because the 
targeted ulua are usually greater than 50 pounds in weight. Shoreline 
fisheries (deployed from shore with rod and reel) also typically use 
``slide bait'' or ``slide rigs'' that allow the use of live bait (small 
fish or octopus) hooked in the middle of the bait. If a monk seal 
pursued this live bait and targeted the center of the bait or swallowed 
it whole, it could get hooked in the mouth. PIFSC research with 
bottomfishing gear uses pieces of fish for bait that attract bottomfish 
but not monk seals. Monk seals could be attracted to a caught 
bottomfish but, given the length of the target bottomfish, it is 
unlikely that a monk seal would be physically capable of swallowing the 
whole fish and thus swallowing the hook. The risk of monk seals getting 
hooked on bottomfishing gear used in PIFSC research is therefore less 
than the risk of getting hooked on shoreline hook-and-line gears which 
are identified in Caretta et al. (2019).
    PIFSC has no records of marine mammals interacting with 
bottomfishing research gear and given the mitigation measures the PIFSC 
would be required to implement for bottomfishing research to prevent 
marine mammals from interacting with bottomfishing activities (e.g., 
avoiding fishing when monk seals are present; see Proposed Mitigation 
below), NMFS has concluded that the risk of marine mammal interactions 
with its research bottomfishing gear is not high enough to warrant 
authorizing incidental take for

[[Page 15326]]

marine mammals in that gear. These proposed regulations would require 
PIFSC to document potential depredation of its bottomfish research gear 
(catch loss) in the future, and increase monitoring efforts when catch 
loss becomes apparent, in an effort to better understand the potential 
risks of hooking to monk seals and other marine mammals.

                                           Table 7--Total Estimated Take Due to Gear Interaction, 2021-26 \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      PIFSC potential M/SI Level A take request (all areas combined)
                                                 -------------------------------------------------------------------------------------------------------
                                                       Midwater trawl             Hook-and-line        Instrument deployments     Sum all
                                                 ----------------------------------------------------         and traps             gear
                                                                                                     --------------------------   (trawl,
               Common name (stock)                                                                                               hook-and-     Sum all
                                                   Calculated  Total takes   Calculated  Total takes   Calculated                line, and    gears  5-
                                                    average    over 5-year    average    over 5-year    average    Total takes  instruments      year
                                                    take per      period      take per      period      take per   over 5-year   and traps)  request \a\
                                                      year                      year                      year        period       annual
                                                                                                                                  request
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale (Hawai[revaps]i stock)  ...........  ...........          0.2            1  ...........  ...........          0.2            1
Cuvier's Beaked whale (Hawai[revaps]i pelagic     ...........  ...........          0.2            1  ...........  ...........          0.2            1
 stock).........................................
Bottlenose dolphin (Hawai[revaps]i pelagic                0.2            1          0.2            1          0.2            1          0.6            3
 stock).........................................
Bottlenose dolphin (All stocks, except above)...          0.2            1  ...........  ...........          0.2            1          0.4            2
False killer whale (Hawai[revaps]i pelagic or     ...........  ...........          0.2        1 \c\  ...........  ...........          0.2            1
 unspecified \b\)...............................
Humpback whale (Central North Pacific stock)....  ...........  ...........          0.2            1          0.2            1          0.4            2
Kogia spp. (Hawai[revaps]i stocks)..............  ...........  ...........          0.2            1  ...........  ...........          0.2            1
Pantropical spotted dolphin (all stocks)........          0.2            1          0.2            1          0.2            1          0.6            3
Pygmy killer whale (Hawai[revaps]i stock )......  ...........  ...........          0.2            1  ...........  ...........          0.2            1
Risso's dolphin (Hawai[revaps]i stock)..........  ...........  ...........          0.2            1  ...........  ...........          0.2            1
Rough-toothed dolphin (Hawai[revaps]i stock)....          0.2            1          0.2            1          0.2            1          0.6            3
Rough-toothed dolphin (all stocks except above).  ...........  ...........          0.2            1          0.2            1          0.4            2
Short-finned pilot whale (Hawai[revaps]i stock).  ...........  ...........          0.2            1  ...........  ...........          0.2            1
Sperm whale (Hawai[revaps]i stock ).............  ...........  ...........          0.2            1  ...........  ...........          0.2            1
Spinner dolphin (all stocks)....................          0.2            1  ...........  ...........          0.2            1          0.4            2
Striped dolphin (all stocks)....................          0.2            1          0.2            1  ...........  ...........          0.4            2
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Please see Table 6 and preceding text for explanation of take estimates. Takes proposed for authorization are informed by area- and gear-specific
  vulnerability. Because we have no specific information to indicate whether any given future interaction might result in M/SI versus Level A
  harassment, we conservatively assume that all interactions equate to mortality for these fishing gear interactions.
\b\ Hawai[revaps]i pelagic stock is designated as strategic. ``Unspecified stock'' occurs on the high seas.
\c\ Longline research would only occur outside of FKW exclusion zone; potential take not in HARA, only within WCPRA.

Estimated Take Due to Acoustic Harassment

    As described previously (``Potential Effects of the Specified 
Activity on Marine Mammals and Their Habitat''), we believe that PIFSC 
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 
PIFSC and acoustics experts from other parts of NMFS) developed an 
analytical framework considering characteristics of the active acoustic 
systems described previously under ``Description of Active Acoustic 
Sound Sources,'' their expected patterns of use, 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 may be seen as 
an overestimate of the potential for behavioral harassment to occur as 
a result of the operation of these systems. Additional details on the 
approach used and the assumptions made that result in these estimates 
are described below.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals behavioral harassment (equated to Level B 
harassment) is reasonably expected or to incur PTS of some degree 
(Level A harassment). We note NMFS has begun efforts to update its 
behavioral thresholds, considering all available data, and is 
formulating a strategy for updating those thresholds for all types of 
sound sources considered in incidental take authorizations. It is 
NMFS's intention to conduct both internal and external review of any 
new thresholds prior to finalizing this rule. In the interim, we apply 
the traditional thresholds.
    Level B Harassment for non-explosive sources--Though significantly 
driven by received sound level, the onset of behavioral disturbance 
from anthropogenic noise exposure is also informed to varying degrees 
by other factors related to the source (e.g., frequency, 
predictability, duty cycle), the environment (e.g., bathymetry), and 
the receiving animals (hearing, motivation, experience, demography, 
behavioral context) and can be difficult to predict (Southall et al., 
2007, Ellison et al., 2011). Based on the best available science and 
the practical need to use a threshold based on a factor that is both 
predictable and measurable for most activities, NMFS uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS predicts that marine mammals are likely to 
be behaviorally harassed in a manner we consider Level B harassment 
when exposed to underwater anthropogenic noise above received levels of 
120 dB re 1 [mu]Pa (rms) for continuous (e.g. vibratory pile-driving, 
drilling) and above 160 dB re 1 [mu]Pa (rms) for intermittent (e.g., 
scientific sonar, seismic airgun) sources.
    The Marine Mammal Commission (Commission) has previously suggested 
NMFS apply the 120 dB continuous Level B harassment threshold to 
scientific sonar such as the ones proposed by the PIFSC. NMFS has 
responded to this comment in multiple Federal Register notices of 
issuance for other NMFS science centers. Here we summarize why the 160 
dB threshold is appropriate when estimating take from acoustic sources 
used during PIFSC research activities. NMFS historically

[[Page 15327]]

has referred to the 160 dB threshold as the impulsive threshold, and 
the 120 dB threshold as the continuous threshold, which in and of 
itself is conflicting as one is referring to pulse characteristics and 
the other is referring to the temporal component. A more accurate term 
for the impulsive threshold is the intermittent threshold. This 
distinction is important because, when assessing the potential for 
hearing loss (permanent threshold shift (PTS) or temporary threshold 
shift (TTS)) or non-auditory injury (e.g., lung injury), the spectral 
characteristics of source (impulsive vs. non-impulsive) is critical to 
assessing the potential for such impacts. However, for behavior, the 
temporal component is more appropriate to consider. Gomez et al. (2016) 
conducted a systematic literature review (370 papers) and analysis (79 
studies, 195 data cases) to better assess probability and severity of 
behavioral responses in marine mammals exposed to anthropogenic sound. 
They found a significant relationship between source type and 
behavioral response when sources were split into broad categories that 
reflected whether sources were continuous, sonar, or seismic (the 
latter two of which are intermittent sources). Moreover, while Gomez et 
al (2017) acknowledges acoustically sensitive species (beaked whales 
and harbor porpoise), the authors do not recommend an alternative 
method for categorizing sound sources for these species when assessing 
behavioral impacts from noise exposure.
    To apply the continuous 120 dB threshold to all species based on 
data from known acoustically sensitive species (one species of which is 
the harbor porpoise, which does not inhabit PIFSC research areas) is 
not warranted, as it would be unnecessarily conservative for non-
sensitive species. Qualitatively considered in our effects analysis 
below is that beaked whales and harbor porpoise are more acoustically 
sensitive than other cetacean species, and thus are more likely to 
demonstrate overt changes in behavior when exposed to such sources. 
Further, in absence of very sophisticated acoustic modeling, our 
propagation rates are also conservative. Therefore, the distance to the 
160 dB threshold is likely much closer to the source than calculated. 
In summary, the PIFSC's proposed activity only includes the use of 
intermittent sources (scientific sonar). Therefore, the 160 dB 
threshold is applicable when quantitatively estimating take by 
behavioral harassment incidental to PIFSC scientific sonar for all 
marine mammal species.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Technical Guidance, 2018) identifies dual criteria to 
assess auditory injury (Level A harassment) to five different marine 
mammal groups (based on hearing sensitivity) as a result of exposure to 
noise from two different types of sources (impulsive or non-impulsive). 
However, as described in greater detail in the Potential Effects 
section, given the highly directional, e.g., narrow beam widths, NMFS 
does not anticipate animals would be exposed to noise levels resulting 
in PTS. Therefore, the Level A criteria do not apply here and are not 
discussed further; NMFS is proposing take by Level B harassment only.
    Level B harassment--The operating frequencies of active acoustic 
systems used by the PIFSC range from 30-200 kHz (see Table 1). These 
frequencies are within the very upper hearing range limits of baleen 
whales (7 Hz to 35 kHz). The Simrad EM300 operates at a frequency of 30 
kHz and the Simrad EK60 operates at 30-200 kHz. Baleen whales may be 
able to detect sound from the Simrad EM300 and the Simrad EK60 when it 
operates at the lower frequency. However, the beam pattern is extremely 
narrow (1 degree) at that frequency. The ADCP Ocean Surveyor operates 
at 75 kHz, which is outside of baleen whale hearing capabilities. 
Therefore, we would not expect any exposures to these signals to result 
in behavioral harassment in baleen whales.
    The assessment paradigm for active acoustic sources used in PIFSC 
fisheries research is relatively straightforward and has a number of 
key simple and conservative assumptions. NMFS' current acoustic 
guidance requires in most cases that we assume Level B harassment 
occurs when a marine mammal receives an acoustic signal at or above a 
simple step-function threshold. For use of these active acoustic 
systems used during PIFSC research, NMFS uses the threshold is 160 dB 
re 1 [mu]Pa (rms) as the best available science indicates the temporal 
characteristics of a source are most influential in determining 
behavioral impacts (Gomez et al., 2016), and it is NMFS long standing 
practice to apply the 160 dB threshold to intermittent sources. 
Estimating the number of exposures at the specified received level 
requires several determinations, each of which is described 
sequentially below:
    (1) A detailed characterization of the acoustic characteristics of 
the effective sound source or sources in operation;
    (2) The operational areas exposed to levels at or above those 
associated with Level B harassment when these sources are in operation;
    (3) A method for quantifying the resulting sound fields around 
these sources; and
    (4) An estimate of the average density for marine mammal species in 
each area of operation.
    Quantifying the spatial and temporal dimension of the sound 
exposure footprint (or ``swath width'') of the active acoustic devices 
in operation on moving vessels and their relationship to the average 
density of marine mammals enables a quantitative estimate of the number 
of individuals for which sound levels exceed the relevant threshold for 
each area. The number of potential incidents of Level B harassment is 
ultimately estimated as the product of the volume of water ensonified 
at 160 dB rms or higher and the volumetric density of animals 
determined from simple assumptions about their vertical stratification 
in the water column. Specifically, reasonable assumptions based on what 
is known about diving behavior across different marine mammal species 
were made to segregate those that predominately remain in the upper 200 
m of the water column versus those that regularly dive deeper during 
foraging and transit. Methods for estimating each of these calculations 
are described in greater detail in the following sections, along with 
the simplifying assumptions made, and followed by the take estimates.
    Sound source characteristics--An initial characterization of the 
general source parameters for the primary active acoustic sources 
operated by the PIFSC was conducted, enabling a full assessment of all 
sound sources used by the PIFSC and delineation of Category 1 and 
Category 2 sources, the latter of which were carried forward for 
analysis here. This auditing of the active acoustic sources also 
enabled a determination of the predominant sources that, when operated, 
would have sound footprints exceeding those from any other 
simultaneously used sources. These sources were effectively those used 
directly in acoustic propagation modeling to estimate the zones within 
which the 160 dB rms received level would occur.
    Many of these sources can be operated in different modes and with 
different output parameters. In modeling their potential impact areas, 
those features among those given previously in Table 2 (e.g., lowest 
operating frequency) that

[[Page 15328]]

would lead to the most precautionary estimate of maximum received level 
ranges (i.e., largest ensonified area) were used. The effective beam 
patterns took into account the normal modes in which these sources are 
typically operated. While these signals are brief and intermittent, a 
conservative assumption was taken in ignoring the temporal pattern of 
transmitted pulses in calculating Level B harassment events. Operating 
characteristics of each of the predominant sound sources were used in 
the calculation of effective line-kilometers and area of exposure for 
each source in each survey.

   Table 8--Effective Exposure Areas for Predominant Acoustic Sources
                         Across Two Depth Strata
------------------------------------------------------------------------
                                                     Effective exposure
                               Effective exposure   area: Sea surface to
   Active acoustic system     area: Sea surface to  depth at which sound
                               200 m depth (km\2\)  is attenuated to 160
                                                     dB SPL (km\2\) \a\
------------------------------------------------------------------------
Simrad EK60.................                0.0082                0.0413
Simrad EM300................                 0.112                3.7661
ADCP Ocean Surveyor.........                0.0086                0.0187
------------------------------------------------------------------------
\a\ Greater than 200 m depth.

    Calculating effective line-kilometers--As described below, based on 
the operating parameters for each source type, an estimated volume of 
water ensonified at or above the 160 dB rms threshold was calculated. 
In all cases where multiple sources are operated simultaneously, the 
one with the largest estimated acoustic footprint was considered to be 
the effective source. Two depth zones were defined for each of the four 
research areas: 0-200 m and > 200 m. Effective line distance and volume 
ensonified was calculated for each depth strata (0-200 m and > 200 m), 
where appropriate. In some cases, this resulted in different sources 
being predominant in each depth stratum for all line km (i.e., the 
total linear distance traveled during acoustic survey operations) when 
multiple sources were in operation. This was accounted for in 
estimating overall exposures for species that utilize both depth strata 
(deep divers). For each ecosystem area, the total number of line km 
that would be surveyed was determined, as was the relative percentage 
of surveyed line km associated with each source. The total line-
kilometers for each survey, the dominant source, the effective 
percentages associated with each depth, and the effective total volume 
ensonified are given below (Table 7).
    Calculating volume of water ensonified--The cross-sectional area of 
water ensonified to a 160 dB rms received level was calculated using a 
simple spherical spreading model of sound propagation loss (20 log R) 
such that there would be 60 dB of attenuation over 1000 m. Spherical 
spreading is a reasonable assumption even in relatively shallow waters 
since, taking into account the beam angle, the reflected energy from 
the seafloor will be much weaker than the direct source and the volume 
influenced by the reflected acoustic energy would be much smaller over 
the relatively short ranges involved. We also accounted for the 
frequency-dependent absorption coefficient and beam pattern of these 
sound sources, which is generally highly directional. The lowest 
frequency was used for systems that are operated over a range of 
frequencies. The vertical extent of this area is calculated for two 
depth strata. These results, shown in Table 9, were applied 
differentially based on the typical vertical stratification of marine 
mammals (see Table 10).
    Following the determination of effective sound exposure area for 
transmissions considered in two dimensions, the next step was to 
determine the effective volume of water ensonified at or above 160 dB 
rms for the entirety of each survey. For each of the three predominant 
sound sources, the volume of water ensonified is estimated as the 
athwartship cross-sectional area (in square kilometers) of sound at or 
above 160 dB rms (as illustrated in Figure 6.1 of PIFSC's application) 
multiplied by the total distance traveled by the ship. Where different 
sources operating simultaneously would be predominant in each different 
depth strata, the resulting cross-sectional area calculated took this 
into account. Specifically, for shallow-diving species this cross-
sectional area was determined for whichever was predominant in the 
shallow stratum, whereas for deeper-diving species this area was 
calculated from the combined effects of the predominant source in the 
shallow stratum and the (sometimes different) source predominating in 
the deep stratum. This creates an effective total volume characterizing 
the area ensonified when each predominant source is operated and 
accounts for the fact that deeper-diving species may encounter a 
complex sound field in different portions of the water column.

[[Page 15329]]



                                           Table 9--Five-Year Total Line Kilometers for Each Vessel and Its Predominant Source Within Two Depth Strata
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                     Line km/         Volume                                          Volume
                                                  Average line                                     % Time source     dominant      ensonified at   % Time source     Line km/      ensonified at
                 Vessel--survey                  kms per vessel          Dominant source           dominant (0-     source (0-     0-200 m Depth     dominant        dominant      >200 m Depth
                                                                                                       200m)           200m)          (km\3\)         (>200m)     source (>200m)      (km\3\)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Hawaiian Archipelago Research Area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hi`ialakai RAMP................................           36000  Simrad EM 300..................              25            9000          1000.8              25            9000         32894.1
                                                          36000  ADCP Ocean Surveyor............              75           27000           232.2              75           27000           272.1
Hi`ialakai Coral Reef Benthic Mapping..........           17000  Simrad EM 300..................             100           17000          1890.4             100           17000         62133.3
Oscar Elton Sette Kona IEA.....................            5000  EK60...........................               0               0               0             100            5000           165.5
                                                           5000  ADCP Ocean Surveyor............             100            5000            43.0               0               0               0
Oscar Elton Sette Insular Fish Abundance                   3000  EK60...........................               0               0               0             100            3000            99.3
 Estimation.
                                                           3000  ADCP Ocean Surveyor............             100            3000            28.5               0               0               0
Hi`ialakai Deep Coral and Sponge Research......            5500  Simrad EM300...................             100            5500           611.6             100            5500         20102.0
Oscar Elton Sette Sampling Pelagic Stages of               4000  EK60...........................               0               0               0             100            4000           132.4
 Insular Fish Species.
                                                           4000  ADCP Ocean Surveyor............             100            4000            34.4               0               0               0
Oscar Elton Sette Cetacean Ecology Assessment..           40000  EK60...........................               0               0               0             100           40000          1324.0
                                                          40000  ADCP Ocean Surveyor............             100           40000           344.0               0               0               0
Hi`ialakai or Oscar Elton Sette RAMP Gear &                2500  EK60...........................               0               0               0             100            2500            82.8
 Instrument Development & Field Trials.
                                                           2500  ADCP Ocean Surveyor............             100            2500            21.5               0               0               0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Mariana Archipelago Research Area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hi`ialakai RAMP................................           18000  Simrad EK60....................              25            4500           500.4              25            4500         16447.1
                                                          18000  ADCP Ocean Surveyor............              75           13500           116.1              75           13500           136.4
Hi`ialakai Coral Reef Benthic Mapping..........            8600  Simrad EM 300..................             100            8600           956.3             100            8600         31432.1
Oscar Elton Sette Insular Fish Abundance                   2000  EK60...........................               0               0               0             100            2000            66.2
 Estimation.
                                                           2000  ADCP Ocean Surveyor............             100            2000            17.2               0               0               0
Hi`ialakai Deep Coral and Sponge...............            5500  Simrad EM 300..................             100            5500           611.6             100            5500         20102.0
Oscar Elton Sette Sampling Pelagic Stages of               2000  EK60...........................               0               0               0             100            2000            66.2
 Insular Fish.

[[Page 15330]]

 
                                                           2000  ADCP Ocean Surveyor............             100            2000            17.2               0               0               0
Oscar Elton Sette Cetacean Ecology Assessment..           20000  EK60...........................               0               0               0             100           20000           662.0
                                                          20000  ADCP Ocean Surveyor............             100           20000           172.0               0               0               0
Hi`ialakai Mariana Baseline Surveys............            3000  EK60...........................               0               0               0             100            3000            99.3
                                                           3000  ADCP Ocean Surveyor............             100            3000            25.8               0               0               0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  American Samoa Research Area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NOAA ship Hi`ialakai RAMP......................           18000  Simrad EK60....................              25            4500           500.4              25            4500         16447.1
                                                          18000  ADCP Ocean Surveyor............              75           13500           116.1              75           13500           136.4
Hi`ialakai Coral Reef Benthic Mapping..........            8600  Simrad EM 300..................             100            8600           956.3             100            8600         31432.1
                                                           2000  EK60...........................               0               0               0             100            2000            66.2
NOAA ship Oscar Elton Sette Insular Fish         ..............  ADCP Ocean Surveyor............             100            2000            17.2               0               0               0
 Abundance Estimation.
Hi`ialakai Deep Coral and Sponge Research......             500  Simrad EM 300..................             100             500            55.6             100             500          1827.5
Oscar Elton Sette Sampling Pelagic Stage of                2000  EK60...........................               0               0               0             100            2000            66.2
 Insular Fish.
                                                           2000  ADCP Ocean Surveyor............             100            2000            17.2               0               0               0
Oscar Elton Sette Cetacean Ecology Assessment..           20000  EK60...........................               0               0               0             100           20000           662.0
                                                          20000  ADCP Ocean Surveyor............             100           20000           172.0               0               0               0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Western and Central Pacific Research Area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hi`ialakai RAMP................................           18000  Simrad EK60....................              25            4500           500.4              25            4500         16447.1
                                                          18000  ADCP Ocean Surveyor............              75           13500           116.1              75           13500           136.4
Hi`ialakai Coral Reef Benthic Mapping..........            8600  Simrad EM 300..................             100            8600           956.3             100            8600         31432.1
Oscar Elton Sette Oceanographic................            7000  EK60...........................               0               0               0             100            7000           231.7
                                                           7000  ADCP Ocean Surveyor............             100            7000            60.2               0               0               0
Oscar Elton Sette Insular Fish Abundance                   2000  EK60...........................               0               0               0             100            2000            66.2
 Estimation.

[[Page 15331]]

 
                                                           2000  ADCP Ocean Surveyor............             100            2000            17.2               0               0               0
Hi`ialakai Deep Coral and Sponge...............             500  Simrad EM 300..................             100             500            55.6             100             500          1827.5
Oscar Elton Sette Sampling Pelagic Stages of               2000  EK60...........................               0               0               0             100            2000            66.2
 Insular Fish.
                                                           2000  ADCP Ocean Surveyor............             100            2000            17.2               0               0               0
Oscar Elton Sette Cetacean Ecology Assessment..           20000  EK60...........................               0               0               0             100           20000           662.0
                                                          20000  ADCP Ocean Surveyor............             100           20000           172.0               0               0               0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 15332]]

    Marine Mammal Densities--One of the primary limitations to 
traditional estimates of behavioral harassment from acoustic exposure 
is the assumption that animals are uniformly distributed in time and 
space across very large geographical areas, such as those being 
considered here. There is ample evidence that this is in fact not the 
case, and marine species are highly heterogeneous in terms of their 
spatial distribution, largely as a result of species-typical 
utilization of heterogeneous ecosystem features. Some more 
sophisticated modeling efforts have attempted to include species-
typical behavioral patterns and diving parameters in movement models 
that more adequately assess the spatial and temporal aspects of 
distribution and thus exposure to sound. While simulated movement 
models were not used to mimic individual diving or aggregation 
parameters in the determination of animal density in this estimation, 
the vertical stratification of marine mammals based on known or 
reasonably assumed diving behavior was integrated into the density 
estimates used.
    First, typical two-dimensional marine mammal density estimates 
(animals/km\2\) were obtained from various sources for each ecosystem 
area. These were estimated from marine mammal Stock Assessment Reports 
and other sources (please see Table 6-5 of PIFSC's application). There 
are a number of caveats associated with these estimates:
    (1) They are often calculated using visual sighting data collected 
during one season rather than throughout the year. The time of year 
when data were collected and from which densities were estimated may 
not always overlap with the timing of PIFSC fisheries surveys (detailed 
previously in ``Detailed Description of Activities'').
    (2) The densities used for purposes of estimating acoustic 
exposures do not take into account the patchy distributions of marine 
mammals in an ecosystem, at least on the moderate to fine scales over 
which they are known to occur. Instead, animals are considered evenly 
distributed throughout the assessed area, and seasonal movement 
patterns are not taken into account.
    (3) Marine mammal density information is in many cases based on 
limited historical surveys and may be incomplete or absent for many 
regions of the vast geographic area addressed by PIFSC fisheries 
research. As a result density estimates for some species/stocks in some 
regions are based on the best available data for other regions and/or 
similar stocks.
    In addition, and to account for at least some coarse differences in 
marine mammal diving behavior and the effect this has on their likely 
exposure to these kinds of often highly directional sound sources, a 
volumetric density of marine mammals of each species was determined. 
This value is estimated as the abundance averaged over the two-
dimensional geographic area of the surveys and the vertical range of 
typical habitat for the population. Habitat ranges were categorized in 
two generalized depth strata (0-200 m and greater than 200 m) based on 
gross differences between known generally surface-associated and 
typically deep-diving marine mammals (e.g., Reynolds and Rommel, 1999; 
Perrin et al., 2009). Animals in the shallow-diving stratum were 
assumed, on the basis of empirical measurements of diving with 
monitoring tags and reasonable assumptions of behavior based on other 
indicators, to spend a large majority of their lives (i.e., greater 
than 75 percent) at depths shallower than 200 m. Their volumetric 
density and thus exposure to sound is therefore limited by this depth 
boundary. Species in the deeper diving stratum were reasonably 
estimated to dive deeper than 200 m and spend 25 percent or more of 
their lives at these greater depths. Their volumetric density and thus 
potential exposure to sounds up to the 160 dB rms level is extended 
from the surface to the depth at which this received level condition 
occurs. Their volumetric density and thus potential exposure to sound 
at or above the 160 dB rms threshold is extended from the surface to 
500 m, (i.e., nominal maximum water depth in regions where these 
surveys occur).
    The volumetric densities are estimates of the three-dimensional 
distribution of animals in their typical depth strata. For shallow-
diving species the volumetric density is the area density divided by 
0.2 km (i.e., 200 m). For deeper diving species, the volumetric density 
is the area density divided by a nominal value of 0.5 km (i.e., 500 m). 
The two-dimensional and resulting three-dimensional (volumetric) 
densities for each species in each ecosystem area are shown in Table 
10.

             Table 10--Volumetric Densities Calculated for Each Species in the PIFSC Research Areas
----------------------------------------------------------------------------------------------------------------
                                                       Typical dive depth strata                    Volumetric
                Species (common name)                ----------------------------  Area density    density  (#/
                                                         0-200 m       >200 m        (#/km\2\)        km\3\)
----------------------------------------------------------------------------------------------------------------
                                       Hawaiian Archipelago Research Area
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin.........................            X   ............         0.02332          0.1166
Striped dolphin.....................................            X   ............           0.025           0.125
Spinner dolphin- all insular........................            X   ............        0.009985       0.0499255
Rough-toothed dolphin...............................            X   ............         0.02963         0.14815
Bottlenose dolphin..................................            X   ............         0.00899         0.04495
Risso's dolphin.....................................  ............            X          0.00474         0.00948
Fraser's dolphin....................................            X   ............         0.02104          0.1052
Melon-headed whale..................................            X   ............         0.00354          0.0177
Melon-headed whale- Kohala stock....................            X   ............        0.001415       0.0070734
Pygmy killer whale..................................            X   ............         0.00435         0.02175
False killer whale- pelagic.........................  ............            X           0.0006          0.0012
False killer whale- MHI insular.....................  ............            X           0.0009          0.0018
False killer whale- NWHI............................  ............            X           0.0014          0.0028
Short-finned pilot whale............................  ............            X          0.00797         0.01594
Killer whale........................................            X   ............         0.00006          0.0003
Sperm whale.........................................  ............            X          0.00186         0.00372
Pygmy sperm whale...................................  ............            X          0.00291         0.00582
Dwarf sperm whale...................................  ............            X          0.00714         0.01428
Blainville's beaked whale...........................  ............            X          0.00086         0.00172
Cuvier's beaked whale...............................  ............            X           0.0003          0.0006

[[Page 15333]]

 
Longman's beaked whale..............................  ............            X          0.00311         0.00622
Unidentified Mesoplodon.............................  ............            X          0.00189         0.00378
Unidentified beaked whale...........................  ............            X          0.00117         0.00234
Hawaiian monk seal..................................            X   ............        0.003741       0.0187042
----------------------------------------------------------------------------------------------------------------
                                        Mariana Archipelago Research Area
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin.........................            X   ............          0.0226           0.113
Striped dolphin.....................................            X   ............         0.00616          0.0308
Spinner dolphin.....................................            X   ............        0.009985       0.0499255
Rough-toothed dolphin...............................            X   ............         0.00314          0.0157
Bottlenose dolphin..................................            X   ............         0.00029         0.00145
Risso's dolphin.....................................  ............        X \1\          0.00021         0.00042
Fraser's dolphin....................................            X   ............         0.02104          0.1052
Melon-headed whale..................................            X   ............         0.00428          0.0214
Pygmy killer whale..................................            X   ............         0.00014          0.0007
False killer whale- pelagic.........................  ............        X \1\          0.00111         0.00222
Short-finned pilot whale............................  ............            X          0.00159         0.00318
Killer whale........................................            X   ............         0.00006          0.0003
Sperm whale.........................................  ............            X          0.00123         0.00246
Pygmy sperm whale...................................  ............            X          0.00291         0.00582
Dwarf sperm whale...................................  ............            X          0.00714         0.01428
Blainville's beaked whale...........................  ............            X          0.00086         0.00172
Cuvier's beaked whale...............................  ............            X           0.0003          0.0006
Unidentified beaked whale...........................  ............            X          0.00117         0.00234
----------------------------------------------------------------------------------------------------------------
                                          American Samoa Research Area
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin.........................            X   ............         0.02332          0.1166
Spinner dolphin.....................................            X   ............         0.00475         0.02375
Rough-toothed dolphin...............................            X   ............         0.02963         0.14815
Bottlenose dolphin..................................            X   ............         0.00899         0.04495
False killer whale..................................            X   ............         0.00090          0.0045
Short-finned pilot whale............................  ............            X          0.00797         0.01594
Killer whale........................................            X   ............         0.00006          0.0003
Sperm whale.........................................  ............            X          0.00186         0.00372
Dwarf sperm whale...................................  ............            X          0.00714         0.01428
Cuvier's beaked whale...............................  ............            X          0.00030          0.0006
Unidentified beaked whale...........................  ............            X          0.00117         0.00234
----------------------------------------------------------------------------------------------------------------
                                    Western and Central Pacific Research Area
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin.........................            X   ............         0.02332          0.1166
Striped dolphin.....................................            X   ............           0.025           0.125
Spinner dolphin.....................................            X   ............        0.011095        0.055475
Rough-toothed dolphin...............................            X   ............         0.02963         0.14815
Bottlenose dolphin..................................            X   ............         0.00899         0.04495
Risso's dolphin.....................................  ............        X \1\          0.00474         0.00948
Fraser's dolphin....................................            X   ............         0.02104          0.1052
Melon-headed whale..................................            X   ............         0.00354          0.0177
Pygmy killer whale..................................            X   ............         0.00435         0.02175
False killer whale..................................  ............        X \1\          0.00102         0.00204
Short-finned pilot whale............................  ............            X          0.00797         0.01594
Killer whale........................................            X   ............         0.00006          0.0003
Sperm whale.........................................  ............            X          0.00186         0.00372
Pygmy sperm whale...................................  ............            X          0.00291         0.00582
Dwarf sperm whale...................................  ............            X          0.00714         0.01428
Blainville's beaked whale...........................  ............            X          0.00086         0.00172
Cuvier's beaked whale...............................  ............            X           0.0003          0.0006
Deraniyagala's beaked whale.........................  ............            X           0.0003          0.0006
Longman's beaked whale..............................  ............            X          0.00311         0.00622
Unidentified beaked whale...........................  ............            X          0.00117         0.00234
----------------------------------------------------------------------------------------------------------------
\1\ NMFS has classified these species as deep diving in the PIFSC research areas, which is different from their
  classification as shallow-diving species by the other NMFS Fisheries Science Centers. These classifications of
  deep-diving are based on unpublished data from telemetry studies including depth of dive and stomach contents
  of deep-diving prey items (E. Oleson, personal communication, November 10, 2015).

    Using Area of Ensonification and Volumetric Density to Estimate 
Exposures--Estimates of potential incidents of Level B harassment 
(i.e., potential exposure to levels of sound at or exceeding the 160 dB 
rms threshold)

[[Page 15334]]

are then calculated by using (1) the combined results from output 
characteristics of each source and identification of the predominant 
sources in terms of acoustic output; (2) their relative annual usage 
patterns for each operational area; (3) a source-specific determination 
made of the area of water associated with received sounds at the extent 
of a depth boundary; and (4) determination of a biologically-relevant 
volumetric density of marine mammal species in each area. Estimates of 
Level B harassment by acoustic sources are the product of the volume of 
water ensonified at 160 dB rms or higher for the predominant sound 
source for each relevant survey and the volumetric density of animals 
for each species. Source- and stratum-specific exposure estimates are 
the product of these ensonified volumes and the species-specific 
volumetric densities (Tables 8, 9 and 10). The general take estimate 
equation for each source in each depth statrum is density * (ensonified 
volume * line kms). To illustrate, we use the ADCP Ocean Surveyor in 
the HARA and the pantropical spotted dolphin as an example.
    (1) ADCP Ocean Surveyor ensonified volume (0-200 m) = 0.0086 km\2\
    (2) Total Line kms = 81,500 km
    (3) Pantropical spotted dolphin density (0-200 m) = 0.11660 
dolphins/km\3\
    (4) Estimated exposures to sound >= 160 dB rms = 0.11660 
pantropical spotted dolphin/km\3\ * (0.0086 km\2\ * 81,500 km) = 81.72 
(rounded up) = 82 estimated pantropical spotted dolphin exposures to 
SPLs >= 160 dB rms resulting from use of the ADCP Ocean Surveyor in the 
HARA
    Totals in Tables 11-14 represent sums across all relevant surveys 
and sources rounded up to the nearest whole number. Note that take of 
baleen whales is not predicted due to the lack of overlap in their 
hearing range with the operating frequencies of PIFSC acoustic sources.

             Table 11--Densities and Estimated Source-, Stratum-, and Species-Specific Five-Year Estimates of Level B Harassment in the HARA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Estimated Level B harassment (numbers      Estimated Level B
                                                                Volumetric   of animals) in 0-200m depth stratum      harassment in >200m
                        Species/stocks                          density (#/---------------------------------------       depth stratum        Total take
                                                                  km\3\)                                          --------------------------     \a\
                                                                                EK60        EM300         ADCP         EK60        EM300
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin...................................     0.11660            0          408           82            0            0          490
Striped dolphin...............................................     0.12500            0          438           88            0            0          525
Spinner dolphin- all insular..................................     0.04993            0          175           35            0            0          210
Rough-toothed dolphin.........................................     0.14815            0          519          104            0            0          623
Bottlenose dolphin (all stocks)...............................     0.04495            0          157           32            0            0          189
Risso's dolphin...............................................     0.00948            0           33            7           17         1091         1148
Fraser's dolphin..............................................     0.10520            0          368           74            0            0          442
Melon-headed whale............................................     0.01770            0           62           12            0            0           74
Melon-headed whale- Kohala stock..............................     0.00707            0           25            5            0            0           30
Pygmy killer whale............................................     0.02175            0           76           15            0            0           91
False killer whale- pelagic...................................     0.00120            0            4            1            2          138          145
False killer whale- MHI insular...............................     0.00180            0            6            1            3          207          218
False killer whale- NWHI......................................     0.00280            0           10            2            5          322          339
Short-finned pilot whale......................................     0.01594            0           56           11           29         1835         1931
Killer whale..................................................     0.00030            0            1            0            0            0        \b\ 6
Sperm whale...................................................     0.00372            0           13            3            7          428          451
Pygmy sperm whale.............................................     0.00582            0           20            4           10          670          705
Dwarf sperm whale.............................................     0.01428            0           50           10           26         1644         1730
Blainville's beaked whale.....................................     0.00172            0            6            1            3          198          208
Cuvier's beaked whale.........................................     0.00060            0            2            0            1           69           73
Longman's beaked whale........................................     0.00622            0           22            4           11          716          753
Unidentified Mesoplodon.......................................     0.00378            0           13            3            7          435          458
Unidentified beaked whale.....................................     0.00234            0            8            2            4          269          283
Hawaiian monk seal............................................     0.01870            0           66           13            0            0           79
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes.
\b\ Where calculated take over five years is less than typical group size, proposed take has been increased to mean group size (U.S. Navy 2017).


             Table 12--Densities and Estimated Source-, Stratum-, and Species-Specific Five-Year Estimates of Level B Harassment in the MARA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Estimated Level B harassment (numbers  Estimated Level B harassment in >200m
                                                   Volumetric   of animals) in 0-200m depth stratum               depth stratum               Total take
                     Species                       density (#/------------------------------------------------------------------------------     \a\
                                                     km\3\)        EK60        EM300         ADCP         EK60        EM300         ADCP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin......................     0.11300            0          234           37            0            0            0          271
Striped dolphin..................................     0.03080            0           64           10            0            0            0           74
Spinner dolphin..................................     0.04993            0          103           17            0            0            0          120
Rough-toothed dolphin............................     0.01570            0           32            5            0            0            0           38
Bottlenose dolphin...............................     0.00145            0            3            0            0            0            0        \b\ 6
Risso's dolphin..................................     0.00042            0            1            0            0           29            0           30
Fraser's dolphin.................................     0.10520            0          218           35            0            0            0      \b\ 283

[[Page 15335]]

 
Melon-headed whale...............................     0.02140            0           44            7            0            0            0       \b\ 73
Pygmy killer whale...............................     0.00070            0            1            0            0            0            0        \b\ 7
False killer whale (pelagic).....................     0.00222            0            5            1            2          151            0          159
Short-finned pilot whale.........................     0.00318            0            7            1            3          216            0          227
Killer whale.....................................     0.00030            0            1            0            0            0            0        \b\ 4
Sperm whale......................................     0.00246            0            5            1            2          167            0          175
Pygmy sperm whale................................     0.00582            0           12            2            5          396            1          416
Dwarf sperm whale................................     0.01428            0           30            5           13          971            2         1020
Blainville's beaked whale........................     0.00172            0            4            1            2          117            0          123
Cuvier's beaked whale............................     0.00060            0            1            0            1           41            0           43
Unidentified beaked whale........................     0.00234            0            5            1            2          159            0          167
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes.
\b\ Where calculated take over five years is less than typical group size, proposed take has been increased to mean group size (U.S. Navy 2017).


            Table 13--Densities and Estimated Source-, Stratum-, and Species-Specific Five-Year Estimates of Level B Harassment in the ASARA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Estimated Level B harassment (numbers     Estimated Level B harassment  in
                                                   Volumetric   of animals) in 0-200m depth stratum            >200m depth stratum            Total take
                     Species                         density  ------------------------------------------------------------------------------     \a\
                                                    (#/km\3\)      EK60        EM300         ADCP         EK60        EM300         ADCP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin......................     0.11660            0          176           38            0            0            0          214
Spinner dolphin..................................     0.02375            0           36            8            0            0            0           44
Rough-toothed dolphin............................     0.14815            0          224           48            0            0            0          272
Bottlenose dolphin...............................     0.04495            0           68           14            0            0            0           82
False killer whale...............................     0.00450            0            7            1            0            0            0       \b\ 10
Short-finned pilot whale.........................     0.01594            0           24            5           13          792            2          836
Killer whale.....................................     0.00030            0            0            0            0            0            0        \b\ 4
Sperm whale......................................     0.00372            0            6            1            3          185            1          195
Dwarf sperm whale................................     0.01428            0           22            5           11          710            2          749
Cuvier's beaked whale............................     0.00060            0            1            0            0           30            0           31
Unidentified beaked whale........................     0.00234            0            4            1            2          116            0          123
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes.
\b\ Where calculated take over five years is less than typical group size, proposed take has been increased to mean group size (U.S. Navy 2017).


            Table 14--Densities and Estimated Source-, Stratum-, and Species-Specific Five-Year Estimates of Level B Harassment in the WCPRA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Estimated Level B harassment (numbers     Estimated Level B harassment  in
                                                   Volumetric   of animals) in 0-200m depth stratum            >200m depth stratum            Total take
                     Species                         density  ------------------------------------------------------------------------------     \a\
                                                    (#/km\3\)      EK60        EM300         ADCP         EK60        EM300         ADCP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin......................     0.11660            0          176           45            0            0            0          221
Striped dolphin..................................     0.12500            0          189           48            0            0            0          237
Spinner dolphin..................................     0.05548            0           84           21            0            0            0          105
Rough-toothed dolphin............................     0.14815            0          224           57            0            0            0          281
Bottlenose dolphin...............................     0.04495            0           68           17            0            0            0           85
Risso's dolphin..................................     0.00948            0           14            4           10          471            1          500
Fraser's dolphin.................................     0.10520            0          159           40            0            0            0      \b\ 283
Melon-headed whale...............................     0.01770            0           27            7            0            0            0       \b\ 73
Pygmy killer whale...............................     0.02175            0           33            8            0            0            0           41
False killer whale...............................     0.00204            0            3            1            2          101            0          107
Short-finned pilot whale.........................     0.01594            0           24            6           16          792            2          841
Killer whale.....................................     0.00030            0            0            0            0            0            0        \b\ 4
Sperm whale......................................     0.00372            0            6            1            4          185            1          197
Pygmy sperm whale................................     0.00582            0            9            2            6          289            1          307
Dwarf sperm whale................................     0.01428            0           22            5           15          710            2          754
Blainville's beaked whale........................     0.00172            0            3            1            2           85            0           91
Cuvier's beaked whale............................     0.00060            0            1            0            1           30            0           32

[[Page 15336]]

 
Deraniyagala's beaked whale......................     0.00060            0            1            0            1           30            0           32
Longman's beaked whale...........................     0.00622            0            9            2            6          309            1          328
Unidentified beaked whale........................     0.00234            0            4            1            2          116            0          123
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Total take may not equal sum of estimated take from each acoustic source and depth stratum due to rounding of fractional calculated takes.
\b\ Where calculated take over five years is less than typical group size, proposed take has been increased to mean group size (U.S. Navy 2018).


     Table 15--Total Proposed Annual and Five-year Takes by Level B
                  Harassment From Acoustic Disturbance
------------------------------------------------------------------------
                                                      All areas average
                                All areas 5-year       annual take by
           Species             total take by Level   Level B  harassment
                                  B  harassment              \a\
------------------------------------------------------------------------
Blainville's beaked whale...                   422                    84
Bottlenose dolphin..........                   362                    72
Cuvier's beaked whale.......                   179                    36
Deraniyagala's beaked whale.                    32                     6
Dwarf sperm whale...........                 4,253                   851
False killer whale..........                   978                   196
Fraser's dolphin............                 1,008                   202
Hawaiian monk seal..........                    79                    16
Killer whale................                    18                     4
Longman's beaked whale......                 1,081                   216
Melon-headed whale..........                   250                    50
Pantropical spotted dolphin.                 1,196                   239
Pygmy killer whale..........                   139                    28
Pygmy sperm whale...........                 1,428                   286
Risso's dolphin.............                 1,678                   336
Rough-toothed dolphin.......                 1,214                   243
Short-finned pilot whale....                 3,835                   767
Sperm whale.................                 1,018                   204
Spinner dolphin.............                   479                    96
Striped dolphin.............                   836                   167
Unidentified beaked whale...                   696                   139
Unidentified Mesoplodon.....                   458                    92
------------------------------------------------------------------------
\a\ Average annual take calculated by dividing total five-year take by
  five and rounding to nearest whole number.

Estimated Take Due to Physical Disturbance

    Take due to physical disturbance could potentially happen, as it is 
likely that some Hawaiian monk seals will move or flush from known 
haulouts into the water in response to the presence or sound of PIFSC 
vessels or researchers. In the MHI and the NWHI, there are numerous 
sites used by the endangered Hawaiian monk seal to haulout (sandy 
beaches, rocky outcroppings, exposed reefs) where the physical presence 
and sounds of researchers walking by or passing nearby in small boats 
may disturb animals present. Disturbance to Hawaiian monk seals would 
occur in the HARA only. Physical disturbance would result in no greater 
than Level B harassment. Behavioral responses may be considered 
according to the scale shown in Table 16 and based on the method 
developed by Mortenson (1996). We consider responses corresponding to 
Levels 2-3 to constitute Level B harassment.

           Table 16--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
         Level             Type of  response            Definition
------------------------------------------------------------------------
1.....................  Alert..................  Seal head orientation
                                                  or brief movement in
                                                  response to
                                                  disturbance, which may
                                                  include turning head
                                                  towards the
                                                  disturbance, craning
                                                  head and neck while
                                                  holding the body rigid
                                                  in a u-shaped
                                                  position, changing
                                                  from a lying to a
                                                  sitting position, or
                                                  brief movement of less
                                                  than twice the
                                                  animal's body length.
2 *...................  Movement...............  Movements in response
                                                  to the source of
                                                  disturbance, ranging
                                                  from short withdrawals
                                                  at least twice the
                                                  animal's body length
                                                  to longer retreats
                                                  over the beach, or if
                                                  already moving a
                                                  change of direction of
                                                  greater than 90
                                                  degrees.
3 *...................  Flush..................  All retreats (flushes)
                                                  to the water.
------------------------------------------------------------------------
* Only observations of disturbance Levels 2 and 3 are recorded as takes.


[[Page 15337]]

    The 2018 SAR for Hawaiian monk seal estimates the total abundance 
in the Hawaiian archipelago is 1,415 seals (Caretta et al., 2019). Not 
all of these seals haul out at the same time or at the same places, and 
therefore it is difficult to predict if any monk seals will be present 
at any particular research location at any point in time. Therefore, 
the best way to estimate the amount of Level B harassment would be to 
approximate the number of seals hauled out at any point in time across 
the HARA and the probability that a researcher would be close enough to 
actually disturb the seal.
    Parrish et al. (2002) estimated approximately one-third of the 
total population may be hauled out at any point in time. Assuming that 
all seals have an equal probability of hauling out anywhere in the 
archipelago, one-third of 1,351 is approximately 450 individual monk 
seals. Given that the two surveys with the highest probability of 
disturbing monk seals (i.e., RAMP and Marine Debris Research and 
Removal) systematically circumnavigate all the islands and atolls when 
they are conducted, we could estimate the annual maximum number of 
Level B harassment takes as 900 during the years when these are 
conducted. Over the course of five years, this would be approximately 
4,500 potential disturbances if all the surveys took place every year 
at every location across the HARA. However, RAMP surveys occur in the 
HARA approximately twice every five years and Marine Debris Research 
and Removal Surveys are rarely funded to a level that would support 
complete circumnavigation of the HARA each year. In addition, during 
some RAMP surveys the location of marine debris are identified (and 
recorded), thus precluding the need for marine debris identification 
later (only removal). Therefore, the approximately 4,500 potential 
disturbances over five years could be reduced by two-fifths to 
approximately 1,800 potential disturbances over five years. 
Furthermore, not all small boat operations during these surveys are 
close enough to the shoreline to actually cause a disturbance (e.g., a 
seal may be hauled out on a beach in a bay but the shallow fringing 
reef may keep the small boat from getting within half of mile from 
shore) and the researchers implement avoidance and minimization 
measures while carrying out the surveys. The approximately 1,800 
potential disturbances could realistically be reduced through avoidance 
or sheer geographical separation by one-half. Therefore, the PIFSC has 
requested, and NMFS is proposing to authorize, 900 Level B disturbances 
of Hawaiian monk seals due to the physical presence of researchers over 
the five-year authorization period, or an average of 180 takes by Level 
B harassment per year. The annual maximum potential exposures (900) 
could also realistically be reduced by half due to mitigation and 
geographical separation to a maximum of 450 takes of Hawaiian monk 
seals by Level B harassment in a year.

Proposed Mitigation

    In order to issue an incidental take authorization under Section 
101(a)(5)(A or D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, ``and other means of 
effecting the least practicable impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking'' for certain subsistence uses. NMFS regulations 
require applicants for incidental take authorizations to include 
information about the availability and feasibility (economic and 
technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) the likelihood of effective implementation (probability 
implemented as planned); and
    (2) the practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, personnel safety, and practicality of implementation.

Mitigation for Marine Mammals and Their Habitat

    The PIFSC has invested significant time and effort in identifying 
technologies, practices, and equipment to minimize the impact of the 
proposed activities on marine mammal species and stocks and their 
habitat. The mitigation measures discussed here have been determined to 
be both effective and practicable and, in some cases, have already been 
implemented by the PIFSC. In addition, the PIFSC is actively conducting 
research to determine if gear modifications are effective at reducing 
take from certain types of gear; any potentially effective and 
practicable gear modification mitigation measures will be discussed as 
research results are available as part of the adaptive management 
strategy included in this rule.

General Measures

    Visual Monitoring--Effective monitoring is a key step in 
implementing mitigation measures and is achieved through regular marine 
mammal watches. Marine mammal watches are a standard part of conducting 
PIFSC fisheries research activities, particularly those activities that 
use gears that are known to or potentially interact with marine 
mammals. Marine mammal watches and monitoring occur during daylight 
hours prior to deployment of gear (e.g., trawls, longline gear), and 
they continue until gear is brought back on board. If marine mammals 
are sighted in the area and are considered to be at risk of interaction 
with the research gear, then the sampling station is either moved or 
canceled or the activity is suspended until the marine mammals are no 
longer in the area. On smaller vessels, the Chief Scientist (CS) and 
the vessel operator are typically those looking for marine mammals and 
other protected species. When marine mammal researchers are on board 
(distinct from marine mammal observers dedicated to monitoring for 
potential gear interactions), they will record the estimated species 
and numbers of animals present and their behavior. If marine mammal 
researchers are not on board or available, then the CS in cooperation 
with the vessel operator will monitor for marine mammals and provide 
training as practical to bridge crew and other crew to observe and 
record such information.
    Coordination and Communication--When PIFSC survey effort is 
conducted aboard NOAA-owned vessels, there are both vessel officers and 
crew and a scientific party. Vessel officers and crew are not composed 
of PIFSC staff but are employees of NOAA's Office of Marine and 
Aviation Operations (OMAO), which is responsible for the management and 
operation of NOAA fleet ships and aircraft and is composed

[[Page 15338]]

of uniformed officers of the NOAA Commissioned Corps as well as 
civilians. The ship's officers and crew provide mission support and 
assistance to embarked scientists, and the vessel's Commanding Officer 
(CO) has ultimate responsibility for vessel and passenger safety and, 
therefore, decision authority regarding the implementation of 
mitigation measures. When PIFSC survey effort is conducted aboard 
cooperative platforms (i.e., non-NOAA vessels), ultimate responsibility 
and decision authority again rests with non-PIFSC personnel (i.e., 
vessel's master or captain). Although the discussion throughout this 
Rule does not always explicitly reference those with decision-making 
authority from cooperative platforms, all mitigation measures apply 
with equal force to non-NOAA vessels and personnel as they do to NOAA 
vessels and personnel. Decision authority includes the implementation 
of mitigation measures (e.g., whether to stop deployment of trawl gear 
upon observation of marine mammals). The scientific party involved in 
any PIFSC survey effort is composed, in part or whole, of PIFSC staff 
and is led by a CS. Therefore, because the PIFSC--not OMAO or any other 
entity that may have authority over survey platforms used by PIFSC--is 
the applicant to whom any incidental take authorization issued under 
the authority of these proposed regulations would be issued, we require 
that the PIFSC take all necessary measures to coordinate and 
communicate in advance of each specific survey with OMAO, or other 
relevant parties, to ensure that all mitigation measures and monitoring 
requirements described herein, as well as the specific manner of 
implementation and relevant event-contingent decision-making processes, 
are clearly understood and agreed-upon. This may involve description of 
all required measures when submitting cruise instructions to OMAO or 
when completing contracts with external entities. PIFSC will coordinate 
and conduct briefings at the outset of each survey and as necessary 
between the ship's crew (CO/master or designee(s), as appropriate) and 
scientific party in order to explain responsibilities, communication 
procedures, marine mammal monitoring protocol, and operational 
procedures. The CS will be responsible for coordination with the 
Officer on Deck (OOD; or equivalent on non-NOAA platforms) to ensure 
that requirements, procedures, and decision-making processes are 
understood and properly implemented.
    The PIFSC will coordinate with the local Pacific Islands Regional 
Stranding Coordinator and the NMFS Stranding Coordinator for any 
unusual protected species behavior and any stranding, beached live/
dead, or floating protected species that are encountered during field 
research activities. If a large whale is alive and entangled in fishing 
gear, the vessel will immediately call the U.S. Coast Guard at VHF Ch. 
16 and/or the appropriate Marine Mammal Health and Stranding Response 
Network for instructions. All entanglements (live or dead) and vessel 
strikes must be reported immediately to the NOAA Fisheries Marine 
Mammal Stranding Hotline at 888-256-9840.
    Vessel Speed--Vessel speed during active sampling rarely exceeds 5 
kt, with typical speeds being 2-4 kt. Transit speeds vary from 6-14 kt 
but average 10 kt. These low vessel speeds minimize the potential for 
ship strike (see ``Potential Effects of the Specified Activity on 
Marine Mammals and Their Habitat'' for an in-depth discussion of ship 
strike). In addition, as a standard operating practice, PIFSC maintains 
a 100-yard distance between research vessels and large whales whenever 
and wherever it conducts fisheries research activities. At any time 
during a survey or in transit, if a crew member or designated marine 
mammal observer standing watch sights marine mammals that may intersect 
with the vessel course that individual will immediately communicate the 
presence of marine mammals to the bridge for appropriate course 
alteration or speed reduction, as possible, to avoid incidental 
collisions.
    Other Gears--The PIFSC deploys a wide variety of gear to sample the 
marine environment during all of their research cruises. Many of these 
types of gear (e.g., plankton nets, video camera and ROV deployments) 
are not considered to pose any risk to marine mammals and are therefore 
not subject to specific mitigation measures. However, at all times when 
the PIFSC is conducting survey operations at sea, the OOD and/or CS and 
crew will monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    Handling Procedures--Handling procedures are those taken to return 
a live animal to the sea or process a dead animal. The PIFSC will 
implement a number of handling protocols to minimize potential harm to 
marine mammals that are incidentally taken during the course of 
fisheries research activities. In general, protocols have already been 
prepared for use on commercial fishing vessels. Although commercial 
fisheries take larger quantities of marine mammals than fisheries 
research, the nature of such takes by entanglement or capture are 
similar. Therefore, the PIFSC would adopt commercial fishery 
disentanglement and release protocols (summarized below), which should 
increase post-release survival. Handling or disentangling marine 
mammals carries inherent safety risks, and using best professional 
judgment and ensuring human safety is paramount.
    Captured or entangled live or injured marine mammals are released 
from research gear and returned to the water as soon as possible with 
no gear or as little gear remaining on the animal as possible. Animals 
are released without removing them from the water if possible, and data 
collection is conducted in such a manner as not to delay release of the 
animal(s) or endanger the crew. PIFSC is responsible for training PIFSC 
and partner affiliates on how to identify different species; handle and 
bring marine mammals aboard a vessel; assess the level of 
consciousness; remove fishing gear; and return marine mammals to water. 
Human safety is always the paramount concern.

Trawl Survey Visual Monitoring and Operational Protocols

    Visual monitoring protocols, described above, are an integral 
component of trawl mitigation protocols. Observation of marine mammal 
presence and behaviors in the vicinity of PIFSC trawl survey operations 
allows for the application of professional judgment in determining the 
appropriate course of action to minimize the incidence of marine mammal 
gear interactions.
    The OOD, CS or other designated member of the scientific party, and 
crew standing watch on the bridge visually scan surrounding waters with 
the naked eye and rangefinding binoculars (or monocular) for marine 
mammals prior to, during, and until all trawl operations are completed. 
Some sets may be made at night or in other limited visibility 
conditions, when visual observation may be conducted using the naked 
eye and available vessel lighting with limited effectiveness.
    Most research vessels engaged in trawling will have their station 
in view for 15 minutes or 2 nmi prior to reaching the station, 
depending upon the sea state and weather. Many vessels will inspect the 
tow path before deploying the trawl gear, adding another 15 minutes of 
observation time and gear preparation prior to deployment.

[[Page 15339]]

Personnel on watch must monitor the station for 30 minutes prior to 
deploying the trawl. If personnel on watch observe marine mammals, they 
must immediately alert the OOD and CS as to their best estimate of the 
species, quantity, distance, bearing, and direction of travel relative 
to the ship's position. If any marine mammals are sighted around the 
vessel during the 30-minute pre-deployment monitoring period before 
setting gear, the vessel must be moved away from the animals to a 
different section of the sampling area if the animals appear to be at 
risk of interaction with the gear. This is what is referred to as the 
``move-on'' rule.
    If marine mammals are observed at or near the station, the CS and 
the vessel operator will determine the best strategy to avoid potential 
takes based on the species encountered, their numbers and behavior, 
their position and vector relative to the vessel, and other factors. 
For instance, a whale transiting through the area and heading away from 
the vessel may not require any move, or may require only a short move 
from the initial sampling site, while a pod of dolphins gathered around 
the vessel may require a longer move from the initial sampling site or 
possibly cancellation of the station if the dolphins follow the vessel. 
After moving on, if marine mammals are still visible from the vessel 
and appear to be at risk, the CS or OOD may decide, in consultation 
with the vessel operator, to move again or to skip the station. In many 
cases, the survey design can accommodate sampling at an alternate site. 
Gear would not be deployed if marine mammals have been sighted from the 
ship in its approach to the station unless those animals do not appear 
to be in danger of interactions with the gear, as determined by the 
judgment of the CS and vessel operator. The efficacy of the ``move-on'' 
rule is limited during nighttime or other periods of limited 
visibility, although operational lighting from the vessel illuminates 
the water in the immediate vicinity of the vessel during gear setting 
and retrieval. In these cases, it is again the judgment of the CS or 
vessel operator as based on experience and in consultation with the 
vessel operator to exercise due diligence and to decide on appropriate 
course of action to avoid unintentional interactions.
    Once the trawl net is in the water, the OOD, CS or other designated 
scientist, and/or crew standing watch continue to monitor the waters 
around the vessel and maintain a lookout for marine mammals as 
environmental conditions allow (as noted previously, visibility can be 
limited for various reasons). If marine mammals are sighted before the 
gear is fully retrieved, the most appropriate response to avoid 
incidental take is determined by the professional judgment of the OOD, 
in consultation with the CS and vessel operator as necessary. These 
judgments take into consideration the species, numbers, and behavior of 
the animals, the status of the trawl net operation (net opening, depth, 
and distance from the stern), the time it would take to retrieve the 
net, and safety considerations for changing speed or course. If marine 
mammals are sighted during haul-back operations, there is the potential 
for entanglement during retrieval of the net, especially when the trawl 
doors have been retrieved and the net is near the surface and no longer 
under tension. The risk of catching an animal may be reduced if the 
trawling continues and the haul-back is delayed until after the marine 
mammal has lost interest in the gear or left the area. The appropriate 
course of action to minimize the risk of incidental take is determined 
by the professional judgment of the OOD, vessel operator, and the CS 
based on all situation variables, even if the choices compromise the 
value of the data collected at the station. The PIFSC must retrieve 
trawl gear immediately if marine mammals are believed to be captured/
entangled in a net, line, or associated gear and follow disentanglement 
protocols.
    We recognize that it is not possible to dictate in advance the 
exact course of action that the OOD or CS should take in any given 
event involving the presence of marine mammals in proximity to an 
ongoing trawl tow, given the sheer number of potential variables, 
combinations of variables that may determine the appropriate course of 
action, and the need to prioritize human safety in the operation of 
fishing gear at sea. Nevertheless, PIFSC will account for all factors 
that shape both successful and unsuccessful decisions, and these 
details will be fed back into PIFSC training efforts and ultimately 
help to refine the best professional judgment that determines the 
course of action taken in future scenarios (see further discussion in 
``Proposed Monitoring and Reporting'').
    If trawling operations have been suspended because of the presence 
of marine mammals, the vessel will resume trawl operations (when 
practicable) only when the animals are believed to have departed the 
area. This decision is at the discretion of the OOD/CS and is dependent 
on the situation. PIFSC shall conduct trawl operations as soon as is 
practicable upon arrival at the sampling station following visual 
monitoring pre-deployment. PIFSC shall implement standard survey 
protocols to minimize potential for marine mammal interactions, 
including maximum tow durations at target depth and maximum tow 
distance, and shall carefully empty the trawl as quickly as possible 
upon retrieval. Standard tow durations for midwater trawls are between 
two and four hours as target species (e.g., pelagic stage eteline 
snappers) are relatively rare, and longer haul times are necessary to 
acquire the appropriate scientific samples. However, trawl hauls will 
be terminated and the trawl retrieved upon the determination and 
professional judgment of the officer on watch, in consultation with the 
CS or other designated scientist and other experienced crew as 
necessary, that this action is warranted to avoid an incidental take of 
a marine mammal.

Longline Survey Visual Monitoring and Operational Protocols

    Visual monitoring requirements for all longline surveys are similar 
to the general protocols described above for trawl surveys. Please see 
that section for full details of the visual monitoring protocol and the 
move-on rule mitigation protocol. In summary, requirements for longline 
surveys are to: (1) Conduct visual monitoring prior to arrival on 
station; (2) implement the move-on rule if marine mammals are observed 
within the area around the vessel and may be at risk of interacting 
with the vessel or gear; (3) deploy gear as soon as possible upon 
arrival on station (depending on presence of marine mammals); and (4) 
maintain visual monitoring effort throughout deployment and retrieval 
of the longline gear. As was described for trawl gear, the OOD, CS, or 
personnel on watch will use best professional judgment to minimize the 
risk to marine mammals from potential gear interactions during 
deployment and retrieval of gear. If marine mammals are detected during 
setting operations and are considered to be at risk, immediate 
retrieval or suspension of operations may be warranted. If operations 
have been suspended because of the presence of marine mammals, the 
vessel will resume setting (when practicable) only when the animals are 
believed to have departed the area. If marine mammals are detected 
during retrieval operations and are considered to be at risk, haul-back 
may be postponed. The PIFSC must retrieve gear immediately if marine 
mammals are believed to be captured/entangled in a net, line, or 
associated gear and follow disentanglement protocols. These decisions 
are at the discretion of the

[[Page 15340]]

OOD/CS and are dependent on the situation.
    The 1994 amendments to the MMPA tasked NMFS with establishing 
monitoring programs to estimate mortality and serious injury of marine 
mammals incidental to commercial fishing operations and to develop Take 
Reduction Plans (TRPs) in order to reduce commercial fishing takes of 
strategic stocks of marine mammals below Potential Biological Removal 
(PBR). The False Killer Whale Take Reduction Plan (FKWTRP) was 
finalized in 2012 to reduce the level of mortality and serious injury 
of false killer whales in Hawaii-based longline fisheries for tuna and 
billfish (77 FR 71260; November 29, 2012). Regulatory measures in the 
FKWTRP include gear requirements, prohibited areas, training and 
certification in marine mammal handling and release, and posting of 
NMFS-approved placards on longline vessels. PIFSC does not conduct 
fisheries and ecosystem research with longline gear within any of the 
exclusion zones established by the FKWTRP.
    Because longline research is currently conducted in conjunction 
with commercial fisheries, operational characteristics (e.g., 
branchline and floatline length, hook type and size, bait type, number 
of hooks between floats) of the longline gear in Hawai[revaps]i, 
American Samoa, Guam, the Commonwealth of the Northern Marianas, or 
EEZs of the Pacific Insular Areas adhere to the requirements on 
commercial longline gear based on NMFS regulations (summarized at 
https://www.fisheries.noaa.gov/pacific-islands/resources-fishing/regulation-summaries-and-compliance-guides-pacific-islands and 
specified in 50 CFR 229, 300, 404, 600, and 665). PIFSC will adhere to 
the regulations detailed at the link above, and generally follow the 
following procedures when setting and retrieving longline gear:
     When shallow-setting anywhere and setting longline gear 
from the stern: Completely thawed and blue-dyed bait will be used (two 
1-pound containers of blue-dye will be kept on the boat for backup). 
Fish parts and spent bait with all hooks removed will be kept for 
strategic offal discard. Retained swordfish will be cut in half at the 
head; used heads and livers will also be used for strategic offal 
discard. Setting will only occur at night and begin 1 hour after local 
sunset and finish 1 hour before next sunrise, with lighting kept to a 
minimum.
     When deep-setting north of 23[deg] N and setting longline 
gear from the stern: 45 Gram (g) or heavier weights will be attached 
within 1 m of each hook. A line shooter will be used to set the 
mainline. Completely thawed and blue-dyed bait will be used (two 1-
pound containers of blue-dye will be kept on the boat for backup). Fish 
parts and spent bait with all hooks removed will be kept for strategic 
offal discard. Retained swordfish will be cut in half at the head; used 
heads and livers will also be used for strategic offal discard.
     When shallow-setting anywhere and setting longline gear 
from the side: Mainline will be deployed from the port or starboard 
side at least 1 m forward of the stern corner. If a line shooter is 
used, it will be mounted at least 1 m forward from the stern corner. A 
specified bird curtain will be used aft of the setting station during 
the set. Gear will be deployed so that hooks do not resurface. 45 g or 
heavier weights will be attached within 1 m of each hook.
     When deep-setting north of 23[deg] N and setting longline 
gear from the side: Mainline will be deployed from the port or 
starboard side at least 1 m forward of the stern corner. If a line 
shooter is used, it will be mounted at least 1 m forward from the stern 
corner. A specified bird curtain will be used aft of the setting 
station during the set. Gear will be deployed so that hooks do not 
resurface. 45 g or heavier weights will be attached within 1 m of each 
hook.
    Operational characteristics in non-Western Pacific Regional 
Fisheries Management Council areas of jurisdiction (i.e., outside of 
the areas under NMFS jurisdiction named above) adhere to the 
regulations of the applicable management agencies. These agencies 
include the Western and Central Pacific Fisheries Commission (WCPFC), 
International Commission for the Conservation of Atlantic Tunas 
(ICCAT), and Inter-American Tropical Tuna Commission (IATTC). These 
operational characteristics include specifications in WCPFC 2008, WCPFC 
2007, ICCAT 2010, ICCAT 2011, IATTC 2011, and IATTC 2007.

Small Boat and Diver Operations

    The following measures are carried out by the PIFSC when working in 
and around shallow water coral reef habitats. These measures are 
intended to avoid and minimize impacts to marine mammals and other 
protected species. Transit from the open ocean to shallow-reef survey 
regions (depths of < 35 m) of atolls and islands should be no more than 
3 nmi, dependent upon prevailing weather conditions and regulations. 
Each team conducts surveys and in-water operations with at least two 
divers observing for the proximity of marine mammals, a coxswain 
driving the small boat, and a topside spotter working in tandem. 
Topside spotters may also work as coxswains, depending on team 
assignment and boat layout. Spotters and coxswains will be tasked with 
specifically looking out for divers, marine mammals, and environmental 
hazards.
    Before approaching any shoreline or exposed reef, all observers 
will examine the beach, shoreline, reef areas, and any other visible 
land areas within the line of sight for marine mammals. Divers, 
spotters, and coxswains undertake consistent due diligence and take 
every precaution during operations to avoid interactions with any 
marine mammals (e.g., flushing Hawaiian monk seals). Scientists, 
divers, and coxswains follow the Best Management Practices (BMPs) for 
boat operations and diving activities. These practices include but are 
not limited to the following:
     Constant vigilance shall be kept for the presence of 
marine mammals;
     When piloting vessels, vessel operators shall alter course 
to remain at least 100 m from marine mammals;
     Reduce vessel speed to 10 kt or less when piloting vessels 
within 1 km (as visibility permits) of marine mammals;
     Marine mammals should not be encircled or trapped between 
multiple vessels or between vessels and the shore;
     If approached by a marine mammal (within 100 yards for 
large whales and 50 yards for all other marine mammals), put the engine 
in neutral and allow the animal to pass;
     Unless specifically covered under a separate NMFS research 
permit that allows activity in proximity to marine mammals, all in-
water work, not already underway, will be postponed and must not 
commence until large whales are beyond 100 yards or other marine 
mammals are beyond 50 yards;
     Should marine mammals enter the area while in-water work 
is already in progress, the activity may continue only when that 
activity has no reasonable expectation to adversely affect the 
animal(s);
     No feeding, touching, riding, or otherwise intentionally 
interacting with any marine mammals is permitted unless undertaken to 
rescue a marine mammal or otherwise authorized by another permit;
     Mechanical equipment will also be monitored to ensure no 
accidental entanglements occur with protected species (e.g., with PAM 
float lines, transect lines, and oceanographic equipment stabilization 
lines); and
     Team members will immediately respond to an entangled 
animal, halting operations and providing an onsite

[[Page 15341]]

response assessment (allowing the animal to disentangle itself, 
assisting with disentanglement, etc.), unless doing so would put 
divers, coxswains, or other staff at risk of injury or death.

Marine Debris Research and Removal Activities

    Land vehicle (trucks) operations will occur in areas of marine 
debris where vehicle access is possible from highways or rural/dirt 
roads adjacent to coastal resources. Prior to initiating any marine 
debris removal operations, marine debris personnel (marine ecosystem 
specialists) will thoroughly examine the beaches and near shore 
environments/waters for Hawaiian monk seals before approaching marine 
debris sites and initiating removal activities. Debris will be 
retrieved by personnel who are knowledgeable of and act in compliance 
with all Federal laws, rules and regulations governing wildlife in the 
Papah[amacr]naumoku[amacr]kea Marine National Monument and MHI. This 
includes, but is not limited to maintaining a minimum distance of 50 
yards from all monk seals and a minimum of 100 yards from female seals 
with pups.

Bottomfishing

    The PIFSC carefully considered the potential risk of marine mammal 
interactions with its bottomfishing hook-and-line research gear, and 
determined that the risk was not high enough to warrant requesting 
takes in that gear. However, PIFSC intends to implement mitigation 
measures to reduce the risk of potential interactions and to help 
improve our understanding of what those risks might be for different 
species. These efforts will help inform the adaptive management process 
to determine the appropriate type of mitigation needed for research 
conducted with bottomfishing gear. PIFSC will implement the following 
mitigation measures:
     Visual monitoring for marine mammals for at least 30 
minutes before gear is set and implementation of the ``move-on'' rule 
as described above;
     To avoid attracting any marine mammals to a bottomfishing 
operation, dead fish and bait will not be discarded from the vessel 
while actively fishing. Dead fish and bait may be discarded after gear 
is retrieved and immediately before the vessel leaves the sampling 
location for a new area;
     If a hooked fish is retrieved and it appears to the fisher 
that it has been damaged by a monk seal or other marine mammal, then 
visual monitoring will be enhanced around the vessel for the next ten 
minutes. Fishing may continue during this time. If a shark is sighted, 
then visual monitoring would be returned to normal. If a monk seal, 
bottlenose dolphin, or other marine mammal is seen in the vicinity of a 
bottomfishing operation, then the gear would be retrieved immediately 
and the vessel would be moved to another sampling location where marine 
mammals are not present. Catch loss would be tallied on the data sheet, 
as would a ``move-on'' for a marine mammal; and
     If bottomfishing gear is lost while fishing, then visual 
monitoring will be enhanced around the vessel for the next ten minutes. 
Fishing may continue during this time. If a shark is sighted, then 
visual monitoring would be returned to normal under the assumption that 
marine mammals and sharks are unlikely to co-occur. If a monk seal, 
bottlenose dolphin, or other marine mammal is seen in the vicinity, it 
would be observed until a determination can be made of whether gear is 
sighted attached to the animal, gear is suspected to be on the animal 
(i.e., it demonstrates uncharacteristic behavior such as thrashing), or 
gear is not observed on the animal and it behaves normally. If a 
cetacean or monk seal is sighted with the gear attached or suspected to 
be attached, then the procedures and actions for incidental takes would 
be initiated (see ``Monitoring and Reporting''). Gear loss would be 
tallied on the data sheet, as would a ``move-on'' because of a marine 
mammal.

Instrument and Trap Deployment

    Visual monitoring requirements for instrument and trap deployments 
are similar to the general protocols described above for trawl and 
longline surveys. Please see that section for full details of the 
visual monitoring protocol and the move-on rule mitigation protocol. In 
summary, requirements for longline surveys are to: (1) Conduct visual 
monitoring prior to arrival on station; (2) implement the move-on rule 
if marine mammals are observed within the area around the vessel and 
may be at risk of interacting with the vessel or gear; (3) deploy gear 
as soon as possible upon arrival on station (depending on presence of 
marine mammals); and (4) maintain visual monitoring effort throughout 
deployment and retrieval of the gear. As was described for trawl and 
longline gear, the OOD, CS, or personnel on watch will use best 
professional judgment to minimize the risk to marine mammals from 
potential gear interactions during deployment and retrieval of gear. If 
marine mammals are detected during setting operations and are 
considered to be at risk, immediate retrieval or suspension of 
operations may be warranted. If operations have been suspended because 
of the presence of marine mammals, the vessel will resume setting (when 
practicable) only when the animals are believed to have departed the 
area. If marine mammals are detected during retrieval operations and 
are considered to be at risk, haul-back may be postponed. PIFSC must 
retrieve gear immediately if marine mammals are believed to be 
entangled in an instrument or trap line or associated gear and follow 
disentanglement protocols. These decisions are at the discretion of the 
OOD/CS and are dependent on the situation.
    In order to minimize the potential risk of entanglement during 
instrument and trap deployment, PIFSC is evaluating possible 
modifications to total line length and the relative length of floating 
line to sinking line used for stationary gear that is deployed from 
ships or small boats (e.g., stereo-video data collection). A certain 
amount of extra line (or scope) is needed whenever deploying gear/
instruments to the seafloor to prevent currents from moving the gear/
instruments off station. If the line is floating line and there is no 
current then the scope will be floating on the surface. Alternatively, 
scope in sinking line may gather below the water surface when currents 
are slow or absent. Because current speeds vary, there is a need for 
scope every time that gear is deployed.
    Line floating on the surface presents the greatest risk for marine 
mammal entanglement because: (1) When marine mammals (e.g., humpback 
whales) come to the surface to breathe, the floating line is more 
likely to become caught in their mouths or around their fins; and (2) 
humpback whales tend to spend most of their time near the surface, 
generally in the upper 150 m of the water column.
    Currently, PIFSC uses only floating line to deploy stationary gear 
from ships or small boats. Floating line is used in order to maintain 
the vertical orientation of the line immediately above the instrument 
on the seafloor. The floating line also helps to keep the line off of 
the seafloor where it could snag or adversely affect benthic organisms 
or habitat features.
    This mitigation measure would involve the use of sinking line for 
approximately the top \1/3\ of the line. The other approximately lower 
\2/3\ would still be floating line. This configuration would allow any 
excess scope in the line to sink to a depth where it would be below 
where most

[[Page 15342]]

whales and dolphins commonly occur. Specific line lengths, and ratios 
of floating line to sinking line, would vary with actual depth and the 
total line length. This mitigation measure would not preclude the risk 
of whales or dolphins swimming into the submerged line, but this risk 
is believed to be lower relative to line floating on the surface.
    Based on our evaluation of the PIFSC's proposed measures, as well 
as other measures considered by NMFS, NMFS has preliminarily determined 
that the proposed mitigation measures provide the means effecting the 
least practicable impact on the affected species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an incidental take authorization for an activity, 
section 101(a)(5)(A) of the MMPA states that NMFS must set forth 
``requirements pertaining to the monitoring and reporting of such 
taking.'' The MMPA implementing regulations at 50 CFR 216.104(a)(13) 
require that requests for incidental take authorizations must include 
the suggested means of accomplishing the necessary monitoring and 
reporting that will result in increased knowledge of the species and of 
the level of taking or impacts on populations of marine mammals that 
are expected to be present in the proposed action area.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the 
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 marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.
    PIFSC shall designate a compliance coordinator who shall be 
responsible for ensuring compliance with all requirements of any LOA 
issued pursuant to these regulations and for preparing for any 
subsequent request(s) for incidental take authorization.
    PIFSC plans to make its training, operations, data collection, 
animal handling, and sampling protocols more systematic in order to 
improve its ability to understand how mitigation measures influence 
interaction rates and ensure its research operations are conducted in 
an informed manner and consistent with lessons learned from those with 
experience operating these gears in close proximity to marine mammals. 
It is in this spirit that we propose the monitoring requirements 
described below.

Visual Monitoring

    Marine mammal watches are a standard part of conducting fisheries 
research activities, and are implemented as described previously in 
``Proposed Mitigation.'' Dedicated marine mammal visual monitoring 
occurs as described (1) for some period prior to deployment of most 
research gear; (2) throughout deployment and active fishing of all 
research gears; (3) for some period prior to retrieval of longline 
gear; and (4) throughout retrieval of all research gear. This visual 
monitoring is performed by trained PIFSC personnel or other trained 
crew during the monitoring period. Observers record the species and 
estimated number of animals present and their behaviors. This may 
provide valuable information towards an understanding of whether 
certain species may be attracted to vessels or certain survey gears. 
Separately, personnel on watch (those navigating the vessel and other 
crew; these will typically not be PIFSC personnel) monitor for marine 
mammals at all times when the vessel is being operated. The primary 
focus for this type of watch is to avoid striking marine mammals and to 
generally avoid navigational hazards. These personnel on watch 
typically have other duties associated with navigation and other vessel 
operations and are not required to record or report to the scientific 
party data on marine mammal sightings, except when gear is being 
deployed, soaking, or retrieved or when marine mammals are observed in 
the path of the ship during transit.
    PIFSC will also monitor disturbance of hauled-out pinnipeds 
resulting from the presence of researchers, paying particular attention 
to the distance at which pinnipeds are disturbed. Disturbance will be 
recorded according to the three-point scale, representing increasing 
seal response to disturbance, shown in Table 16.

Training

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

[[Page 15343]]

to draw on the collective experience of people who have been making 
those decisions, provide a forum for the exchange of information about 
what went right and what went wrong, and try to determine if there are 
any rules-of-thumb or key factors to consider that would help in future 
decisions regarding avoidance practices. PIFSC would coordinate not 
only among its staff and vessel captains but also with those from other 
fisheries science centers and institutions with similar experience.
    PIFSC would also develop a formalized marine mammal training 
program required for all PIFSC research projects and for all crew 
members that may be posted on monitoring duty or handle incidentally 
caught marine mammals. Training programs would be conducted on a 
regular basis and would include topics such as monitoring and sighting 
protocols, species identification, decision-making factors for avoiding 
take, procedures for handling and documenting marine mammals caught in 
research gear, and reporting requirements. PIFSC will work with the 
Pacific Islands commercial fisheries Observer Program to customize a 
new marine mammal training program for researchers and ship crew. The 
Observer Program currently provides protected species training (and 
other types of training) for NMFS-certified observers placed on board 
commercial fishing vessels. PIFSC Chief Scientists and appropriate 
members of PIFSC research crews will be trained using similar 
monitoring, data collection, and reporting protocols for marine mammal 
as is required by the Observer Program. All PIFSC research crew members 
that may be assigned to monitor for the presence of marine mammals 
during future surveys will be required to attend an initial training 
course and refresher courses annually or as necessary. The 
implementation of this training program would formalize and standardize 
the information provided to all research crew that might experience 
marine mammal interactions during research activities.
    For all PIFSC research projects and vessels, written cruise 
instructions and protocols for avoiding adverse interactions with 
marine mammals will be reviewed and, if found insufficient, made fully 
consistent with the Observer Program training materials and any 
guidance on decision-making that arises out of the two training 
opportunities described above. In addition, informational placards and 
reporting procedures will be reviewed and updated as necessary for 
consistency and accuracy. All PIFSC research cruises already include 
pre-sail review of marine mammal protocols for affected crew but PIFSC 
will also review its briefing instructions for consistency and 
accuracy.
    Following the first year of implementation of the LOA, PIFSC will 
convene a workshop with PIRO Protected Resources, PIFSC fishery 
scientists, NOAA research vessel personnel, and other NMFS staff as 
appropriate to review data collection, marine mammal interactions, and 
refine data collection and mitigation protocols, as required. PIFSC 
will also coordinate with NMFS' Office of Science and Technology to 
ensure training and guidance related to handling procedures and data 
collection is consistent with other fishery science centers, where 
appropriate.

Handling Procedures and Data Collection

    PIFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard procedures will be subject to approval by NMFS's Office of 
Protected Resources (OPR). Improved standardization of handling 
procedures were discussed previously in ``Proposed Mitigation.'' In 
addition to improving marine mammal survival post-release, PIFSC 
believes adopting these protocols for data collection will also 
increase the information on which ``serious injury'' determinations 
(NMFS, 2012a, 2012b) are based, improve scientific knowledge about 
marine mammals that interact with fisheries research gear, and increase 
understanding of the factors that contribute to these interactions. 
PIFSC personnel will receive standard guidance and training on handling 
marine mammals, including how to identify different species, bring an 
individual aboard a vessel, assess the level of consciousness, remove 
fishing gear, return an individual to the water, and record activities 
pertaining to the interaction.
    PIFSC will record interaction information on their own standardized 
forms. To aid in serious injury determinations and comply with the 
current NMFS Serious Injury Guidelines, researchers will also answer a 
series of supplemental questions on the details of marine mammal 
interactions.
    Finally, for any marine mammals that are killed during fisheries 
research activities, scientists will collect data and samples pursuant 
to Appendix D of the PIFSC Draft Environmental Assessment, ``Protected 
Species Mitigation and Handling Procedures for PIFSC Fisheries Research 
Vessels.''

Reporting

    As is normally the case, PIFSC will coordinate with the relevant 
stranding coordinators for any unusual marine mammal behavior and any 
stranding, beached live/dead, or floating marine mammals that are 
encountered during field research activities. The PIFSC will follow a 
phased approach with regard to the cessation of its activities and/or 
reporting of such events, as described in the proposed regulatory texts 
following this preamble. In addition, Chief Scientists (or vessel 
operators) will provide reports to PIFSC leadership and to the Office 
of Protected Resources (OPR). As a result, when marine mammals interact 
with survey gear, whether killed or released alive, a report provided 
by the CS will fully describe any observations of the animals, the 
context (vessel and conditions), decisions made and rationale for 
decisions made in vessel and gear handling. The circumstances of these 
events are critical in enabling PIFSC 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 PIFSC will submit annual summary reports to OPR including:
    (1) Annual line-kilometers surveyed during which the EK60, EM 300, 
and ADCP Ocean Surveyor (or equivalent sources) were predominant (see 
``Estimated Take by Acoustic Harassment'' for further discussion), 
specific to each region;
    (2) Summary information regarding use of all longline and trawl 
gear, including number of sets, tows, etc., specific to each research 
area and gear;
    (3) Accounts of surveys where marine mammals were observed during 
sampling but no interactions occurred;
    (4) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why;
    (5) Summary information related to any disturbance of pinnipeds, 
including event-specific total counts of animals present, counts of 
reactions according to the three-point scale shown in Table 14, and 
distance of closest approach;
    (6) A written description of any mitigation research investigation 
efforts and findings (e.g., line modifications);
    (7) A written evaluation of the effectiveness of PIFSC mitigation 
strategies in reducing the number of marine mammal interactions with

[[Page 15344]]

survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any; and
    (8) Details on marine mammal-related training taken by PIFSC and 
partner affiliates.
    The period of reporting will be annually. The first annual report 
must cover the period from the date of issuance of the LOA through the 
end of that calendar year and the entire first full calendar year of 
the authorization. Subsequent reports would cover only one full 
calendar year. Each annual report must be submitted not less than 
ninety days following the end of a given year. PIFSC shall provide a 
final report within thirty days following resolution of comments on the 
draft report. Submission of this information serves an adaptive 
management framework function by allowing NMFS to make appropriate 
modifications to mitigation and/or monitoring strategies, as necessary, 
during the proposed five-year period of validity for these regulations.
    NMFS has established a formal incidental take reporting system, the 
Protected Species Incidental Take (PSIT) database, requiring that 
incidental takes of protected species be reported within 48 hours of 
the occurrence. The PSIT generates automated messages to NMFS 
leadership and other relevant staff, alerting them to the event and to 
the fact that updated information describing the circumstances of the 
event has been inputted to the database. The PSIT and CS reports 
represent not only valuable real-time reporting and information 
dissemination tools but also serve as an archive of information that 
may be mined in the future to study why takes occur by species, gear, 
region, etc. The PIFSC is required to report all takes of protected 
species, including marine mammals, to this database within 48 hours of 
the occurrence and following standard protocol.
    In the unanticipated event that PIFSC fisheries research activities 
clearly cause the take of a marine mammal in a prohibited manner, PIFSC 
personnel engaged in the research activity shall immediately cease such 
activity until such time as an appropriate decision regarding activity 
continuation can be made by the PIFSC Director (or designee). The 
incident must be reported immediately to OPR and the NMFS Pacific 
Islands Regional Office. OPR will review the circumstances of the 
prohibited take and work with PIFSC to determine what measures are 
necessary to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. The immediate decision made by PIFSC regarding 
continuation of the specified activity is subject to OPR concurrence. 
The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident including, but not limited to, 
monitoring prior to and occurring at time of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s) (e.g. dead, injured but alive, injured 
and moving, blood or tissue observed in the water, status unknown, 
disappeared, etc.); and
    (ix) Photographs or video footage of the animal(s).
    In the event that PIFSC discovers an injured or dead marine mammal 
and determines that the cause of the injury or death is unknown and the 
death is relatively recent (e.g., in less than a moderate state of 
decomposition), PIFSC shall immediately report the incident to OPR and 
the NMFS Pacific Islands Regional Office. The report must include the 
information identified above. Activities may continue while OPR reviews 
the circumstances of the incident. OPR will work with PIFSC to 
determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    In the event that PIFSC discovers an injured or dead marine mammal 
and determines that the injury or death is not associated with or 
related to PIFSC fisheries research activities (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, 
scavenger damage), PIFSC shall report the incident to OPR and the 
Pacific Islands Regional Office, NMFS, within 24 hours of the 
discovery. PIFSC shall provide photographs or video footage or other 
documentation of the stranded animal sighting to OPR.
    In the event of a ship strike of a marine mammal by any PIFSC or 
partner vessel involved in the activities covered by the authorization, 
PIFSC or partner shall immediately report the information described 
above, as well as the following additional information:
    (i) Vessel's speed during and leading up to the incident;
    (ii) Vessel's course/heading and what operations were being 
conducted;
    (iii) Status of all sound sources in use;
    (iv) Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    (v) Estimated size and length of animal that was struck; and
    (vi) Description of the behavior of the marine mammal immediately 
preceding and following the strike.
    PIFSC will also collect and report all necessary data, to the 
extent practicable given the primacy of human safety and the well-being 
of captured or entangled marine mammals, to facilitate serious injury 
(SI) determinations for marine mammals that are released alive. PIFSC 
will require that the CS complete data forms and address supplemental 
questions, both of which have been developed to aid in SI 
determinations. PIFSC understands the critical need to provide as much 
relevant information as possible about marine mammal interactions to 
inform decisions regarding SI determinations. In addition, the PIFSC 
will perform all necessary reporting to ensure that any incidental M/SI 
is incorporated as appropriate into relevant SARs.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' by mortality, serious injury, and Level A or Level B 
harassment, we consider other factors, such as the likely nature of any 
behavioral responses (e.g., intensity, duration), the context of any 
such responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the

[[Page 15345]]

environmental baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, and specific consideration of take 
by M/SI previously authorized for other NMFS research activities).

Serious Injury and Mortality

    We note here that the takes from potential gear interactions 
enumerated below could result in non-serious injury, but their worse 
potential outcome (mortality) is analyzed for the purposes of the 
negligible impact determination.
    In addition, we discuss here the connection, and differences, 
between the legal mechanisms for authorizing incidental take under 
section 101(a)(5) for activities such as those proposed by PIFSC, and 
for authorizing incidental take from commercial fisheries. In 1988, 
Congress amended the MMPA's provisions for addressing incidental take 
of marine mammals in commercial fishing operations. Congress directed 
NMFS to develop and recommend a new long-term regime to govern such 
incidental taking (see MMC, 1994). The need to develop a system suited 
to the unique circumstances of commercial fishing operations led NMFS 
to suggest a new conceptual means and associated regulatory framework. 
That concept, PBR, and a system for developing plans containing 
regulatory and voluntary measures to reduce incidental take for 
fisheries that exceed PBR were incorporated as sections 117 and 118 in 
the 1994 amendments to the MMPA. In Conservation Council for Hawaii v. 
National Marine Fisheries Service, 97 F. Supp. 3d 1210 (D. Haw. 2015), 
which concerned a challenge to NMFS' regulations and LOAs to the Navy 
for activities assessed in the 2013-2018 HSTT MMPA rulemaking, the 
Court ruled that NMFS' failure to consider PBR when evaluating lethal 
takes in the negligible impact analysis under section 101(a)(5)(A) 
violated the requirement to use the best available science.
    PBR is defined in section 3 of the MMPA as ``the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population'' (OSP) and, although not controlling, 
can be one measure considered among other factors when evaluating the 
effects of M/SI on a marine mammal species or stock during the section 
101(a)(5)(A) process. OSP is defined in section 3 of the MMPA as ``the 
number of animals which will result in the maximum productivity of the 
population or the species, keeping in mind the carrying capacity of the 
habitat and the health of the ecosystem of which they form a 
constituent element.'' An overarching goal of the MMPA is to ensure 
that each species or stock of marine mammal is maintained at or 
returned to its OSP.
    PBR values are calculated by NMFS as the level of annual removal 
from a stock that will allow that stock to equilibrate within OSP at 
least 95 percent of the time, and is the product of factors relating to 
the minimum population estimate of the stock (Nmin), the 
productivity rate of the stock at a small population size, and a 
recovery factor. Determination of appropriate values for these three 
elements incorporates significant precaution, such that application of 
the parameter to the management of marine mammal stocks may be 
reasonably certain to achieve the goals of the MMPA. For example, 
calculation of the minimum population estimate (Nmin) 
incorporates the level of precision and degree of variability 
associated with abundance information, while also providing reasonable 
assurance that the stock size is equal to or greater than the estimate 
(Barlow et al., 1995), typically by using the 20th percentile of a log-
normal distribution of the population estimate. In general, the three 
factors are developed on a stock-specific basis in consideration of one 
another in order to produce conservative PBR values that appropriately 
account for both imprecision that may be estimated, as well as 
potential bias stemming from lack of knowledge (Wade, 1998).
    Congress called for PBR to be applied within the management 
framework for commercial fishing incidental take under section 118 of 
the MMPA. As a result, PBR cannot be applied appropriately outside of 
the section 118 regulatory framework without consideration of how it 
applies within the section 118 framework, as well as how the other 
statutory management frameworks in the MMPA differ from the framework 
in section 118. PBR was not designed and is not used as an absolute 
threshold limiting commercial fisheries. Rather, it serves as a means 
to evaluate the relative impacts of those activities on marine mammal 
stocks. Even where commercial fishing is causing M/SI at levels that 
exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the 
commercial fishing context under section 118, NMFS may develop a take 
reduction plan, usually with the assistance of a take reduction team. 
The take reduction plan will include measures to reduce and/or minimize 
the taking of marine mammals by commercial fisheries to a level below 
the stock's PBR. That is, where the total annual human-caused M/SI 
exceeds PBR, NMFS is not required to halt fishing activities 
contributing to total M/SI but rather utilizes the take reduction 
process to further mitigate the effects of fishery activities via 
additional bycatch reduction measures. In other words, under section 
118 of the MMPA, PBR does not serve as a strict cap on the operation of 
commercial fisheries that may incidentally take marine mammals.
    Similarly, to the extent PBR may be relevant when considering the 
impacts of incidental take from activities other than commercial 
fisheries, using it as the sole reason to deny (or issue) incidental 
take authorization for those activities would be inconsistent with 
Congress's intent under section 101(a)(5), NMFS' long-standing 
regulatory definition of ``negligible impact,'' and the use of PBR 
under section 118. The standard for authorizing incidental take for 
activities other than commercial fisheries under section 101(a)(5) 
continues to be, among other things that are not related to PBR, 
whether the total taking will have a negligible impact on the species 
or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to 
make the negligible impact finding or to authorize incidental take 
through multi-year regulations, nor does its companion provision at 
section 101(a)(5)(D) for authorizing non-lethal incidental take under 
the same negligible-impact standard. NMFS' MMPA implementing 
regulations state that take has a negligible impact when it does not 
``adversely affect the species or stock through effects on annual rates 
of recruitment or survival''--likewise without reference to PBR. When 
Congress amended the MMPA in 1994 to add section 118 for commercial 
fishing, it did not alter the standards for authorizing non-commercial 
fishing incidental take under section 101(a)(5), implicitly 
acknowledging that the negligible impact standard under section 
101(a)(5) is separate from the PBR metric under section 118. In fact, 
in 1994 Congress also amended section 101(a)(5)(E) (a separate 
provision governing commercial fishing incidental take for species 
listed under the ESA) to add compliance with the new section 118 but 
retained the standard of the negligible impact finding under section 
101(a)(5)(A) (and section 101(a)(5)(D)), showing that Congress 
understood that the determination of negligible impact and the 
application of PBR may share

[[Page 15346]]

certain features but are, in fact, different.
    Since the introduction of PBR in 1994, NMFS had used the concept 
almost entirely within the context of implementing sections 117 and 118 
and other commercial fisheries management-related provisions of the 
MMPA. Prior to the Court's ruling in Conservation Council for Hawaii v. 
National Marine Fisheries Service and consideration of PBR in a series 
of section 101(a)(5) rulemakings, there were a few examples where PBR 
had informed agency deliberations under other MMPA sections and 
programs, such as playing a role in the issuance of a few scientific 
research permits and subsistence takings. But as the Court found when 
reviewing examples of past PBR consideration in Georgia Aquarium v. 
Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. 2015), where NMFS had 
considered PBR outside the commercial fisheries context, ``it has 
treated PBR as only one `quantitative tool' and [has not used it] as 
the sole basis for its impact analyses.'' Further, the agency's 
thoughts regarding the appropriate role of PBR in relation to MMPA 
programs outside the commercial fishing context have evolved since the 
agency's early application of PBR to section 101(a)(5) decisions. 
Specifically, NMFS' denial of a request for incidental take 
authorization for the U.S. Coast Guard in 1996 seemingly was based on 
the potential for lethal take in relation to PBR and did not appear to 
consider other factors that might also have informed the potential for 
ship strike in relation to negligible impact (61 FR 54157; October 17, 
1996).
    The MMPA requires that PBR be estimated in SARs and that it be used 
in applications related to the management of take incidental to 
commercial fisheries (i.e., the take reduction planning process 
described in section 118 of the MMPA and the determination of whether a 
stock is ``strategic'' as defined in section 3), but nothing in the 
statute requires the application of PBR outside the management of 
commercial fisheries interactions with marine mammals. Nonetheless, 
NMFS recognizes that as a quantitative metric, PBR may be useful as a 
consideration when evaluating the impacts of other human-caused 
activities on marine mammal stocks. Outside the commercial fishing 
context, and in consideration of all known human-caused mortality, PBR 
can help inform the potential effects of M/SI requested to be 
authorized under section 101(a)(5)(A). As noted by NMFS and the U.S. 
Fish and Wildlife Service in our implementing regulations for the 1986 
amendments to the MMPA (54 FR 40341, September 29, 1989), the Services 
consider many factors, when available, in making a negligible impact 
determination, including, but not limited to, the status of the species 
or stock relative to OSP (if known); whether the recruitment rate for 
the species or stock is increasing, decreasing, stable, or unknown; the 
size and distribution of the population; and existing impacts and 
environmental conditions. In this multi-factor analysis, PBR can be a 
useful indicator for when, and to what extent, the agency should take 
an especially close look at the circumstances associated with the 
potential mortality, along with any other factors that could influence 
annual rates of recruitment or survival.
    When considering PBR during evaluation of effects of M/SI under 
section 101(a)(5)(A), we first calculate a metric for each species or 
stock that incorporates information regarding ongoing anthropogenic M/
SI from all sources into the PBR value (i.e., PBR minus the total 
annual anthropogenic mortality/serious injury estimate in the SAR), 
which is called ``residual PBR'' (Wood et al., 2012). We first focus 
our analysis on residual PBR because it incorporates anthropogenic 
mortality occurring from other sources. If the ongoing human-caused 
mortality from other sources does not exceed PBR, then residual PBR is 
a positive number, and we consider how the anticipated or potential 
incidental M/SI from the activities being evaluated compares to 
residual PBR using the framework in the following paragraph. If the 
ongoing anthropogenic mortality from other sources already exceeds PBR, 
then residual PBR is a negative number and we consider the M/SI from 
the activities being evaluated as described further below.
    When ongoing total anthropogenic mortality from the applicant's 
specified activities does not exceed PBR and residual PBR is a positive 
number, as a simplifying analytical tool we first consider whether the 
specified activities could cause incidental M/SI that is less than 10 
percent of residual PBR (the ``insignificance threshold,'' see below). 
If so, we consider M/SI from the specified activities to represent an 
insignificant incremental increase in ongoing anthropogenic M/SI for 
the marine mammal stock in question that alone (i.e., in the absence of 
any other take) will not adversely affect annual rates of recruitment 
and survival. As such, this amount of M/SI would not be expected to 
affect rates of recruitment or survival in a manner resulting in more 
than a negligible impact on the affected stock unless there are other 
factors that could affect reproduction or survival, such as Level A 
and/or Level B harassment, or other considerations such as information 
that illustrates uncertainty involved in the calculation of PBR for 
some stocks. In a few prior incidental take rulemakings, this threshold 
was identified as the ``significance threshold,'' but it is more 
accurately labeled an insignificance threshold, and so we use that 
terminology here, as we did in the U.S. Navy's Atlantic Fleet Training 
and Testing (AFTT) final rule (83 FR 57076; November 14, 2018), and 
two-year rule extension (84 FR 70712; December 23, 2019), as well as 
the U.S. Navy's Hawaii-Southern California Training and Testing (HSTT) 
final rule (83 FR 66846; December 27, 2018) and two-year rule extension 
(85 FR 41780; July 10, 2020). Assuming that any additional incidental 
take by Level B harassment from the activities in question would not 
combine with the effects of the authorized M/SI to exceed the 
negligible impact level, the anticipated M/SI caused by the activities 
being evaluated would have a negligible impact on the species or stock. 
However, M/SI above the 10 percent insignificance threshold does not 
indicate that the M/SI associated with the specified activities is 
approaching a level that would necessarily exceed negligible impact. 
Rather, the 10 percent insignificance threshold is meant only to 
identify instances where additional analysis of the anticipated M/SI is 
not required because the negligible impact standard clearly will not be 
exceeded on that basis alone.
    Where the anticipated M/SI is near, at, or above residual PBR, 
consideration of other factors (positive or negative), including those 
outlined above, as well as mitigation is especially important to 
assessing whether the M/SI will have a negligible impact on the species 
or stock. PBR is a conservative metric and not sufficiently precise to 
serve as an absolute predictor of population effects upon which 
mortality caps would appropriately be based. For example, in some cases 
stock abundance (which is one of three key inputs into the PBR 
calculation) is underestimated because marine mammal survey data within 
the U.S. EEZ are used to calculate the abundance even when the stock 
range extends well beyond the U.S. EEZ. An underestimate of abundance 
could result in an underestimate of PBR. Alternatively, we sometimes 
may not have complete M/SI data beyond the U.S. EEZ to compare to PBR, 
which could result in an overestimate of

[[Page 15347]]

residual PBR. The accuracy and certainty around the data that feed any 
PBR calculation, such as the abundance estimates, must be carefully 
considered to evaluate whether the calculated PBR accurately reflects 
the circumstances of the particular stock. M/SI that exceeds residual 
PBR or PBR may still potentially be found to be negligible in light of 
other factors that offset concern, especially when robust mitigation 
and adaptive management provisions are included.
    In Conservation Council for Hawaii v. National Marine Fisheries 
Service, which involved the challenge to NMFS' issuance of LOAs to the 
Navy in 2013 for activities in the HSTT Study Area, the Court reached a 
different conclusion, stating, ``Because any mortality level that 
exceeds PBR will not allow the stock to reach or maintain its OSP, such 
a mortality level could not be said to have only a `negligible impact' 
on the stock.'' As described above, the Court's statement fundamentally 
misunderstands the two terms and incorrectly indicates that these 
concepts (PBR and ``negligible impact'') are directly connected, when 
in fact nowhere in the MMPA is it indicated that these two terms are 
equivalent.
    Specifically, PBR was designed as a tool for evaluating mortality 
and is defined as the number of animals that can be removed while 
``allowing that stock to reach or maintain its [OSP].'' OSP describes a 
population that falls within a range from the population level that is 
the largest supportable within the ecosystem to the population level 
that results in maximum net productivity, and thus is an aspirational 
management goal of the overall statute with no specific timeframe by 
which it should be met. PBR is designed to ensure minimal deviation 
from this overarching goal, with the formula for PBR typically ensuring 
that growth towards OSP is not reduced by more than 10 percent (or 
equilibrates to OSP 95 percent of the time). Given that, as applied by 
NMFS, PBR certainly allows a stock to ``reach or maintain its [OSP]'' 
in a conservative and precautionary manner--and we can therefore 
clearly conclude that if PBR were not exceeded, there would not be 
adverse effects on the affected species or stocks. Nonetheless, it is 
equally clear that in some cases the time to reach this aspirational 
OSP level could be slowed by more than 10 percent (i.e., total human-
caused mortality in excess of PBR could be allowed) without adversely 
affecting a species or stock through effects on its rates of 
recruitment or survival. Thus even in situations where the inputs to 
calculate PBR are thought to accurately represent factors such as the 
species' or stock's abundance or productivity rate, it is still 
possible for incidental take to have a negligible impact on the species 
or stock even where M/SI exceeds residual PBR or PBR.
    As discussed above, while PBR is useful in informing the evaluation 
of the effects of M/SI in section 101(a)(5)(A) determinations, it is 
just one consideration to be assessed in combination with other factors 
and is not determinative. For example, as explained above, the accuracy 
and certainty of the data used to calculate PBR for the species or 
stock must be considered. And we reiterate the considerations discussed 
above for why it is not appropriate to consider PBR an absolute cap in 
the application of this guidance. Accordingly, we use PBR as a trigger 
for concern while also considering other relevant factors to provide a 
reasonable and appropriate means of evaluating the effects of potential 
mortality on rates of recruitment and survival, while acknowledging 
that it is possible to exceed PBR (or exceed 10 percent of PBR in the 
case where other human-caused mortality is exceeding PBR but the 
specified activity being evaluated is an incremental contributor, as 
described in the last paragraph) by some small amount and still make a 
negligible impact determination under section 101(a)(5)(A).
    We note that on June 17, 2020, NMFS finalized new Criteria for 
Determining Negligible Impact under MMPA section 101(a)(5)(E). The 
guidance explicitly notes the differences in the negligible impact 
determinations required under section 101(a)(5)(E), as compared to 
sections 101(a)(5)(A) and 101(a)(5)(D), and specifies that the 
procedure in that document is limited to how the agency conducts 
negligible impact analyses for commercial fisheries under section 
101(a)(5)(E). In the proposed rule (and above), NMFS has described its 
method for considering PBR to evaluate the effects of potential 
mortality in the negligible impact analysis. NMFS has reviewed the 2020 
guidance and determined that our consideration of PBR in the evaluation 
of mortality as described above and in the proposed rule remains 
appropriate for use in the negligible impact analysis for the PIFSC's 
fisheries research activities under section 101(a)(5)(A).
    Our evaluation of the M/SI for each of the species and stocks for 
which mortality could occur follows. By considering the maximum 
potential incidental M/SI in relation to PBR and ongoing sources of 
anthropogenic mortality, we begin our evaluation of whether the 
potential incremental addition of M/SI through PIFSC research 
activities may affect the species' or stock's annual rates of 
recruitment or survival. We also consider the interaction of those 
mortalities with incidental taking of that species or stock by 
harassment pursuant to the specified activity (see Harassment section 
below).
    We propose to authorize take by M/SI over the five-year period of 
validity for these proposed regulations as indicated in Table 16 below. 
For the purposes of the negligible impact analysis, we assume that all 
takes from gear interaction could potentially be in the form of M/SI.
    We previously authorized the take by M/SI of marine mammals 
incidental to fisheries research operations conducted by the SWFSC (see 
80 FR 58981 and 80 FR 68512), the NWFSC (see 83 FR 36370 and 83 FR 
47135), and the Alaska Fisheries Science Center (AFSC) (see 84 FR 46788 
and 84 FR 54893). However, this take would not occur to the same stocks 
for which we propose to authorize take incidental to PIFSC fisheries 
research operations; therefore, we do not consider M/SI takes from 
other science center activities. The final rule for the U.S. Navy's 
HSTT also authorized take of the Hawai[revaps]i stock of sperm whales 
by M/SI. Therefore, that authorized take by the Navy has been 
considered in this assessment. As used in this document, other ongoing 
sources of human-caused (anthropogenic) mortality refers to estimates 
of realized or actual annual mortality reported in the SARs and does 
not include authorized (but unrealized) or unknown mortality. Below, we 
consider the total taking by M/SI proposed for authorization for PIFSC 
to produce a maximum annual M/SI take level (including take of 
unidentified marine mammals that could accrue to any relevant stock) 
and compare that value to the stock's PBR value, considering ongoing 
sources of anthropogenic mortality (as described in footnote 4 of Table 
16 and in the following discussion). PBR and annual M/SI values 
considered in Table 16 reflect the most recent information available 
(i.e., final 2019 SARs). In the Harassment section below, we consider 
the interaction of those mortalities with incidental taking of that 
species or stock by harassment pursuant to the specified activity.

[[Page 15348]]



                                   Table 17--Summary Information Related to PIFSC Proposed Annual Take by Mortality or Serious Injury Authorization, 2021-2026
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Proposed PIFSC
                                                                                       Stock         M/SI take                    Stock annual M/ U.S. Navy HSTT    r-PBR (PBR-    Proposed M/SI
                    Species                                   Stock                  abundance     (annual) 1 2      Stock PBR          SI          authorized    stock annual M/   take/r-PBR
                                                                                                                                                   take by M/SI        SI) 3            (%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale (Hawai[revaps]i       Hawai[revaps]i..................           2,105             0.2              10               0               0              10            2.00
 stock).
Cuvier's Beaked whale (Hawai[revaps]i pelagic   Hawai[revaps]i Pelagic..........             723             0.2             4.3               0               0             4.3            4.65
 stock).
Bottlenose dolphin (Hawai[revaps]i pelagic      Hawai[revaps]i Pelagic..........          21,815             0.6             140               0               0             140            0.43
 stock).
Bottlenose dolphin (All stocks, except above)   All stocks except Hawai[revaps]i             N/A             0.4             N/A             N/A               0             N/A             N/A
 \4\.                                            Pelagic.
False killer whale (Hawai[revaps]i pelagic or   Hawai[revaps]i Pelagic or                  1,540             0.2             9.3             7.6               0             1.7           11.76
 unspecified) \5\.                               unspecified.
Humpback whale (Central North Pacific stock)..  Central North Pacific...........          10,103             0.4              83              25               0              58            0.69
Kogia spp. (Hawai[revaps]i stocks)............  Hawai[revaps]i..................         Unknown             0.2    undetermined               0               0             N/A             N/A
Pantropical spotted dolphin (all stocks) \6\..  all stocks......................          55,795             0.6             403               0               0             403            0.15
Pygmy killer whale (Hawai[revaps]i stock )....  Hawai[revaps]i..................          10,640             0.2              56             1.1               0            54.9            0.36
Risso's dolphin (Hawai[revaps]i stock)........  Hawai[revaps]i..................          11,613             0.2              82               0               0              82            0.24
Rough-toothed dolphin (Hawai[revaps]i stock)..  Hawai[revaps]i..................          72,528             0.6             423             2.1               0           420.9            0.14
Rough-toothed dolphin (all stocks except        All stocks except Hawai[revaps]i             N/A             0.4             N/A             N/A               0             N/A             N/A
 above).
Short-finned pilot whale (Hawai[revaps]i        Hawai[revaps]i..................          19,503             0.2             106             0.9               0           105.1            0.19
 stock).
Sperm whale (Hawai[revaps]i stock )...........  Hawai[revaps]i..................           4,559             0.2            13.9             0.7            0.14           13.06            1.53
Spinner dolphin (all stocks) \7\..............  All stocks......................             665             0.4             6.2             1.0               0             5.2            7.69
Striped dolphin (all stocks)..................  All stocks......................          61,021             0.4             449               0               0             449            0.09
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Please see Table 5 and preceding text for details on estimated take by M/SI.
\1\ As explained earlier in this document, gear interaction could result in mortality, serious injury, or Level A harassment. Because we do not have sufficient information to enable us to
  parse out these outcomes, we present such take as a pool. For purposes of this negligible impact analysis we assume the worst case scenario (that all such takes incidental to research
  activities result in mortality).
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock as a result of NMFS's fisheries research activities and is the
  number carried forward for evaluation in the negligible impact analysis (later in this document). 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\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI, which is presented in the SARs) (see
  Table 3). For some stocks, a minimum population abundance value (and therefore PBR) is unavailable. In these cases, the proportion of estimated population abundance represented by the Level
  B harassment total and/or the proportion of residual PBR represented by the estimated maximum annual M/SI cannot be calculated.
\4\ PBR known for Kauai and Ni[revaps]ihau and Hawaiian Islands stocks but a total PBR for multiple stocks cannot be determined.
\5\ PIFSC fisheries and ecosystem research would not occur within the ranges of other specified false killer whale stocks. ``Unspecified stock'' only occurs on the high seas.
\6\ Stock abundance and PBR presented only for Hawai[revaps]i Pelagic stock, which is the only stock with estimates of population and PBR.
\7\ Stock abundance and PBR presented only for Hawai[revaps]i Island stock, which is the only stock with estimates of population and PBR.


[[Page 15349]]

    The majority of stocks that may potentially be taken by M/SI (11 of 
15) fall below the insignificance threshold (i.e., 10 percent of 
residual PBR). The annual proposed take of false killer whales is 
slightly above the insignificance threshold (11.76 percent of the 
Hawai[revaps]i pelagic stock residual PBR). An additional three stocks 
do not have current PBR values and therefore are evaluated using other 
factors which are discussed later.
    In this section, we first consider stocks for which the proposed 
authorized M/SI falls below the insignificance threshold. Next, we 
consider those stocks with proposed M/SI above the insignificance 
threshold (i.e., Hawai[revaps]i pelagic stock of false killer whales) 
and those without PBR values or known annual M/SI (bottlenose dolphin 
(all stocks except Hawai[revaps]i Pelagic); Hawai[revaps]i stocks of 
Kogia species; and rough-toothed dolphin (all stocks except 
Hawai[revaps]i)).

Stocks With M/SI Below the Insignificance Threshold

    As noted above, for a species or stock with incidental M/SI less 
than 10 percent of residual PBR, we consider M/SI from the specified 
activities to represent an insignificant incremental increase in 
ongoing anthropogenic M/SI that alone (i.e., in the absence of any 
other take and barring any other unusual circumstances) will clearly 
not adversely affect annual rates of recruitment and survival. In this 
case, as shown in Table 16, the following species or stocks have 
proposed M/SI from PIFSC fisheries research below their insignificance 
threshold: Blainville's beaked whale (Hawai[revaps]i stock), Cuvier's 
Beaked whale (Hawai[revaps]i pelagic stock), bottlenose dolphin 
(Hawai[revaps]i pelagic stock), humpback whale (Central North Pacific 
stock), pantropical spotted dolphin (all stocks), pygmy killer whale 
(Hawai[revaps]i stock), Risso's dolphin (Hawai[revaps]i stock), rough-
toothed dolphin (Hawai[revaps]i stock), short-finned pilot whale 
(Hawai[revaps]i stock), sperm whale (Hawai[revaps]i stock), spinner 
dolphin (all stocks), and striped dolphin (all stocks).
    For these stocks with authorized M/SI below the insignificance 
threshold, there are no other known factors, information, or unusual 
circumstances that indicate anticipated M/SI below the insignificance 
threshold could have adverse effects on annual rates of recruitment or 
survival and they are not discussed further.

Stocks With M/SI Above the Insignificance Threshold and/or Undetermined 
PBR

    For false killer whales from the Hawai[revaps]i Pelagic stock, the 
annual potential M/SI due to PIFSC fisheries research activities is 
approximately 12 percent of residual PBR. PBR for the Hawai[revaps]i 
Pelagic stock is currently set at 9.3 and the annual average of known 
ongoing anthropogenic M/SI is 7.6, yielding a residual PBR value of 
1.7. The annual average M/SI incidental to PIFSC research activity is 
0.2, or 11.76 percent of residual PBR. The only known source of other 
anthropogenic mortality for this species is in commercial fisheries. 
The status of this transboundary stock of false killer whales is 
assessed based on the estimated abundance and estimates of mortality 
and serious injury within the U.S. EEZ of the Hawaiian Islands because 
estimates of human-caused mortality and serious injury from all U.S. 
and non-U.S. sources in high seas waters are not available, and because 
the geographic range of this stock beyond the Hawaiian Islands EEZ is 
poorly known. The False Killer Whale Take Reduction Plan (FKWTRP) was 
finalized in 2012 to reduce the level of mortality and serious injury 
of false killer whales in Hawaii-based longline fisheries for tuna and 
billfish (77 FR 71260; November 29, 2012). For the 5-yr period prior to 
the implementation of the FKWTRP, the average rate of mortality and 
serious injury to pelagic stock false killer whales within the Hawaiian 
Islands EEZ (13.6 animals per year) exceeded the PBR (9.3 animals per 
year). In most cases, the NMFS Guidelines for Assessing Marine Mammal 
Stocks (NMFS 2005) suggest pooling estimates of mortality and serious 
injury across 5 years to reduce the effects of sampling variation. If 
there have been significant changes in fishery operation that are 
expected to affect take rates, such as the 2013 implementation of the 
FKWTRP, the guidelines recommend using only the years since regulations 
were implemented. Using only bycatch information from 2013-2015, the 
estimated mortality and serious injury of false killer whales within 
the HI EEZ (4.1) is below the PBR (9.3) (Caretta et al., 2018). Using 
the average M/SI from 2013-2015 (i.e., the years with available data 
after FKWTRP established) to calculate residual PBR, the annual average 
M/SI incidental to PIFSC research activity (0.2 per year) is 3.85 
percent of residual PBR, which falls below the insignificance 
threshold. There are no other factors that would lead us to believe 
that take by M/SI of 12 percent of SARS-reported residual PBR (7.6 
animals per year) would be problematic for this species. Therefore, 
takes of false killer whales under this LOA are not expected or likely 
to adversely affect the species or stock through effects on annual 
rates of recruitment or survival.
    PBR is unknown for the Hawai[revaps]i stocks of dwarf and pygmy 
sperm whales (Kogia spp.). A 2002 shipboard line-transect survey 
resulted in abundance estimates for Kogia species in the Hawaiian 
Islands EEZ (Barlow 2006); however, there were no on-effort sightings 
of Kogia during the 2010 shipboard survey of the Hawaiian EEZ (Bradford 
et al., 2013), such that there is no current abundance estimates for 
these stocks (Caretta et al., 2014). No interactions between nearshore 
fisheries and dwarf sperm whales have been reported in Hawaiian waters. 
One pygmy sperm whale was found entangled in fishing gear off Oahu in 
1994 (Bradford & Lyman 2013), but the gear was not described and the 
fishery not identified. No estimates of human-caused mortality or 
serious injury are currently available for nearshore hook and line 
fisheries because these fisheries are not observed or monitored for 
protected species bycatch. There are currently two distinct longline 
fisheries based in Hawaii: A deep-set longline (DSLL) fishery that 
targets primarily tunas, and a shallow-set longline fishery (SSLL) that 
targets swordfish. Both fisheries operate within U.S. waters and on the 
high seas. Between 2007 and 2011, one pygmy or dwarf sperm whale was 
observed hooked in the SSLL fishery (100 percent observer coverage) 
(McCracken 2013; Bradford & Forney 2013). Based on an evaluation of the 
observer's description of the interaction and following the most 
recently developed criteria for assessing serious injury in marine 
mammals (NMFS 2012), this animal was considered not seriously injured 
(Bradford & Forney 2013). No pygmy or dwarf sperm whales were observed 
hooked or entangled in the DSLL fishery (20-22 percent observer 
coverage). Eight unidentified cetaceans were taken in the DSLL fishery, 
and two unidentified cetaceans were taken in the SSLL fishery, some of 
which may have been Kogia spp. There have been no reported fishery 
related mortality or injuries within the Hawaiian Islands EEZ, such 
that the total mortality and serious injury can be considered to be 
insignificant and approaching zero. Therefore, we expect that the 
proposed take of Kogia spp. by M/SI incidental to PIFSC research 
activity (no more than one over five

[[Page 15350]]

years or in any year, and average of 0.2 per year) would be 
insignificant.
    The Kauai/Ni[revaps]ihau, Oahu, 4-Islands, and Hawai[revaps]i 
Islands stocks of bottlenose dolphins (Hawai[revaps]i Islands stock 
complex) were most recently assessed in the 2017 SARs (Caretta et al., 
2018). PBR was calculated for the Kauai/Ni[revaps]ihau (1.0 bottlenose 
dolphins per year) and Hawai[revaps]i Island (0.9 dolphins per year) 
stocks, but was undetermined for the Oahu and 4-Islands stocks. Annual 
total M/SI was unknown for all stocks. Prior to the 2017 SARs, the most 
recent assessment of the Hawai[revaps]i Islands stock complex was in 
2013, where the PBR for the Oahu and 4-Islands stocks were calculated 
as 4.9 and 1.6 dolphins per year, respectively (Caretta et al., 2014). 
The total estimated M/SI for bottlenose dolphins within the U.S. EEZ 
around the Hawaiian Islands is 0 animals per year. Using the estimated 
zero annual stock M/SI, the residual PBR for each stock is equal to the 
most recently calculated PBR for each stock, from the 2017 and 2013 
SARs (1.0 animals per year for the Kauai/Ni[revaps]ihau stock, 4.9 for 
the Oahu stock, 1.6 for the 4-Islands stock, and 0.9 for the 
Hawai[revaps]i Island stock). PIFSC cannot predict which specific stock 
of bottlenose dolphins may be taken by M/SI. Assuming the proposed 
annual average take by M/SI incidental to PIFSC fisheries research 
activities (0.4 per year) occurs within each stock, the take is above 
the insignificance threshold (i.e., 10 percent of residual PBR) for all 
stocks except the Oahu stock. We consider qualitative information such 
as population dynamics and context to determine if the proposed amount 
of bottlenose dolphin takes from these stocks would have a negligible 
impact on annual rates of survival and recruitment. Marine mammals are 
K-selected species, meaning they have few offspring, long gestation and 
parental care periods, and reach sexual maturity later in life. 
Therefore, between years, reproduction rates vary based on age and sex 
class ratios. As such, population dynamics is a driver when looking at 
reproduction rates. We focus on reproduction here because we 
conservatively consider inter-stock reproduction is the primary means 
of recruitment for these stocks. Recent photo-identification and 
genetic studies off Oahu, Maui, Lanai, Kauai, Niihau, and Hawaii 
suggest limited movement of bottlenose dolphins between islands and 
offshore waters (Baird et al., 2009; Martien et al., 2012). Several 
studies have purported that male bottlenose dolphins are more likely to 
engage in depredation or related behaviors with trawls and recreational 
fishing (Corkeron et al., 1990; Powell & Wells, 2011) or become 
entangled in gear (Reynolds et al., 2000; Adimey et al., 2014). Male 
bias has also been reported for strandings with evidence of fishery 
interaction (Stolen et al., 2007; Fruet et al., 2012; Adimey et al., 
2014) and for in situ observations of fishery interaction (Corkeron et 
al., 1990; Finn et al., 2008; Powell & Wells, 2011). Therefore, we 
believe males (which are less likely to influence recruitment rate) are 
more likely at risk than females. Given reproduction is the primary 
means of recruitment and females play a significantly larger role in 
their offspring's reproductive success (also known as Bateman's 
Principle), the mortality of females rather than males is, in general, 
more likely to influence recruitment rate. PIFSC has requested, and 
NMFS is proposing to authorize, two takes of bottlenose dolphins by M/
SI from any stock over the course of five years. The average 5-yr 
estimates of annual mortality and serious injury for bottlenose 
dolphins in the Hawaiian Islands EEZ is zero, the stocks are not facing 
heavy anthropogenic pressure, and there are no identified continuous 
indirect stressors threatening the stock. While we cannot determine 
from which stock(s) the potential take by M/SI may occur, we do not 
expect that take by M/SI of up to two bottlenose dolphins by M/SI over 
five years from any of the identified or undefined stocks in the PIFSC 
research areas would adversely affect annual rates of recruitment or 
survival for these populations.
    PIFSC has requested take of rough-toothed dolphins by M/SI from the 
Hawai[revaps]i stock (0.6 per year) and from all stocks other than the 
Hawai[revaps]i stock (0.4 per year). The proposed take by M/SI for the 
Hawai[revaps]i stock of rough-toothed dolphins falls below the 
insignificance threshold. For rough-toothed dolphins from all stocks 
except the Hawai[revaps]i stock, PIFSC has requested an average of 0.2 
takes by M/SI per year from longline fisheries research and 0.2 takes 
by M/SI per year from instrument deployments. The only other defined 
stock of rough-toothed dolphins in the PIFSC is the American Samoa 
stock. However, PIFSC will not be conducting longline fisheries 
research in the ASARA, therefore no take of rough-toothed dolphins from 
the American Samoa stock by M/SI incidental to longline fisheries 
research is expected or proposed to be authorized.
    No abundance estimates are currently available for rough-toothed 
dolphins in U.S. EEZ waters of American Samoa. However, density 
estimates for rough-toothed dolphins in other tropical Pacific regions 
can provide a range of likely abundance estimates in this unsurveyed 
region. Using density estimates from other regions, NMFS has calculated 
a minimum abundance estimate (426-2,731 animals) and resulting PBR (3.4 
to 22 animals per year) for the American Samoa stock of rough-toothed 
dolphins (Caretta et al., 2011). Information on fishery-related 
mortality of cetaceans in American Samoa is limited, but the gear types 
used in American Samoan fisheries are responsible for marine mammal 
mortality and serious injury in other fisheries throughout U.S. waters. 
The most recent information on average incidental M/SI of rough-toothed 
dolphins in American Samoa is from longline fisheries observed from 
2006 to 2008 (Caretta et al., 2011). During that time period, the 
average annual take of rough-toothed dolphins M/SI in American Samoa 
was 3.6 per year. That average exceeds the lowest estimated PBR for the 
American Samoa stock of rough-toothed dolphins, but the potential 
average annual take of rough-toothed dolphins by M/SI incidental to 
instrument deployment (0.2 per year) is well below the insignificance 
threshold using the highest estimated PBR. In fact, if the 2006-2008 
average fishery-related take by M/SI is still accurate, the proposed 
average annual take by M/SI incidental to instrument deployment falls 
below the insignificance threshold if the actual PBR is as low as six 
animals per year. Absent any new information on annual fishery-related 
M/SI or PBR, NMFS does not expect that 0.2 takes per year of the 
American Samoa stock of rough-toothed dolphins by M/SI would be 
problematic for the stock. If all 0.4 PIFSC proposed takes by M/SI per 
year (0.2 from longline fisheries research and 0.2 from instrument 
deployment) were to occur to an undescribed stock of rough-toothed 
dolphins, due to their extensive range throughout tropical and warm-
temperate waters, NMFS also does not expect that such a small number of 
takes by M/SI would be problematic for populations of rough-toothed 
dolphins in the Pacific Ocean. Therefore, takes of rough-toothed 
dolphins under this LOA are not expected or likely to adversely affect 
the species or stock through effects on annual rates of recruitment or 
survival.

Harassment

    As described in greater depth previously (see ``Acoustic 
Effects''), we do not believe that PIFSC use of active acoustic sources 
has the likely potential to cause any effect exceeding Level B 
harassment of marine mammals. We have produced what we believe to be 
precautionary estimates of potential

[[Page 15351]]

incidents of Level B harassment. There is a general lack of information 
related to the specific way that these acoustic signals, which are 
generally highly directional and transient, interact with the physical 
environment and to a meaningful understanding of marine mammal 
perception of these signals and occurrence in the areas where PIFSC 
operates. The procedure for producing these estimates, described in 
detail in ``Estimated Take Due to Acoustic Harassment,'' represents 
NMFS's best effort towards balancing the need to quantify the potential 
for occurrence of Level B harassment with this general lack of 
information. The sources considered here have moderate to high output 
frequencies, generally short ping durations, and are typically focused 
(highly directional with narrower beamwidths) to serve their intended 
purpose of mapping specific objects, depths, or environmental features. 
In addition, some of these sources can be operated in different output 
modes (e.g., energy can be distributed among multiple output beams) 
that may lessen the likelihood of perception by and potential impacts 
on marine mammals in comparison with the quantitative estimates that 
guide our proposed take authorization. We also produced estimates of 
incidents of potential Level B harassment due to disturbance of hauled-
out Hawaiian monk seals that may result from the physical presence of 
researchers; these estimates are combined with the estimates of Level B 
harassment that may result from use of active acoustic devices. The 
estimated take by Level B harassment in each research area is 
calculated using the total proposed research effort over the course of 
five years. In order to assess the proposed take on an annual basis, 
the total estimated take has been divided by five.

                         Table 18--Total Proposed Take by Level B Harassment in the HARA
----------------------------------------------------------------------------------------------------------------
                                                                                   HARA Level B
                                                       Stock      HARA Level B 5-     average         Annual
            Species                   Stock          abundance       year take     annual take a    percent of
                                                                                                       stock
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale.....  Hawai[revaps]i..           2,105             208              42             2.0
Bottlenose dolphin............  Hawai[revaps]i            21,815             189              38             0.2
                                 Pelagic.
                                Kauai and                    184                                            20.5
                                 Ni[revaps]ihau.
                                Oahu \b\........             743                                             5.1
                                4-Island Region              191                                            19.8
                                 \b\.
                                Hawai[revaps]i               128                                            29.5
                                 Island.
Cuvier's beaked whale.........  Hawai[revaps]i..             723              73              15             2.0
Dwarf sperm whale.............  Hawai[revaps]i..         Unknown           1,730             346             N/A
False killer whale............  Hawai[revaps]i               167             218              44            26.1
                                 Insular.
                                Northwestern                 617             339              68            11.0
                                 Hawaiian
                                 Islands.
                                Hawai[revaps]i             1,540             145              29             1.9
                                 pelagic.
Fraser's dolphin..............  Hawai[revaps]i..          51,491             442              88             0.2
Hawaiian monk seal............  Hawai[revaps]i..           1,351         \c\ 979         \d\ 468            34.6
Killer whale..................  Hawai[revaps]i..             146               6               1             4.1
Longman's beaked whale........  Hawai[revaps]i..           7,619             753             151             2.0
Melon-headed whale............  Hawai[revaps]i..           8,666              74              15             0.2
                                Kohala..........             447              30               6             1.3
Pantropical spotted dolphin...  Hawai[revaps]i            55,795             490              98             0.2
                                 pelagic.
                                Oahu............         Unknown                                             N/A
                                4-Island Region.         Unknown                                             N/A
                                Hawai[revaps]i           Unknown                                             N/A
                                 Island.
Pygmy killer whale............  Hawai[revaps]i..          10,640              91              18             0.2
Pygmy sperm whale.............  Hawai[revaps]i..         Unknown             705             141             N/A
Risso's dolphin...............  Hawai[revaps]i..          11,613           1,148             230             2.0
Rough-toothed dolphin.........  Hawai[revaps]i..          72,528             623             125             0.2
Short-finned pilot whale......  Hawai[revaps]i..          19,503           1,931             386             2.0
Sperm whale...................  Hawai[revaps]i..           4,559             451              90             2.0
Spinner dolphin...............  Hawai[revaps]i           Unknown             210              42             N/A
                                 pelagic.
                                Kauai and                    601                                             7.0
                                 Ni[revaps]ihau.
                                Oahu/4-Island                355                                            11.8
                                 Region.
                                Hawai[revaps]i               665                                             6.3
                                 Island.
                                Kure and Midway              260                                            16.2
                                 Atoll \b\.
                                Pearl and Hermes         Unknown                                             N/A
                                 Reef.
Striped dolphin...............  Hawai[revaps]i            61,021             525             105             0.2
                                 pelagic.
Unidentified beaked whale.....  N/A.............             N/A             283              57             N/A
Unidentified Mesoplodon.......  N/A.............             N/A             458              92             N/A
----------------------------------------------------------------------------------------------------------------
\a\ Annual take by Level B harassment is calculated by dividing the five-year total estimated take by five,
  rounded to nearest whole number
\b\ Abundance estimates for these stocks are not considered current. We nevertheless present the most recent
  abundance estimates, as these represent the best available information for use in this document.
\c\ 79 takes incidental to use of acoustic sources, 900 takes incidental to disturbance from human presence.
\d\ 15.8 takes incidental to use of acoustic sources, 450 takes incidental to disturbance from human presence
  (maximum potential annual take from physical disturbance).

    With the exception of the American Samoa stocks of spinner 
dolphins, rough-toothed dolphins, and false killer whales, marine 
mammals in the MARA, ASARA, and WCPRA are not assigned to stocks, and 
no current abundance estimates are available for these stocks or 
populations. Therefore, rather than presenting the proposed takes by 
Level B harassment as proportions of relevant stocks, the proposed take 
in these three research areas is grouped in Table 18 by species.

[[Page 15352]]



                                    Table 19--Total Proposed Take by Level B Harassment in the MARA, ASARA, and WCPRA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                 All areas    All areas
                     Species                        MARA  5-       MARA      ASARA  5-      ASARA      WCPRA  5-      WCPRA        5-year    annual take
                                                   year take   Annual take   year take   Annual take   year take   Annual take   total take      \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale.......................          123           25            0            0           91           18          214           43
Bottlenose dolphin..............................            6            1           82           16           85           17          173           35
Cuvier's beaked whale...........................           43            9           31            6           32            6          106           21
Deraniyagala's beaked whale.....................            0            0            0            0           32            6           32            6
Dwarf sperm whale...............................        1,020          204          749          150          754          151        2,523          505
False killer whale..............................          159           32       \b\ 10        \b\ 2          107           21          276           55
Fraser's dolphin................................          283           57            0            0          283           57          451           90
Hawaiian monk seal..............................            0            0            0            0            0            0            0            0
Killer whale....................................            4            1            4            1            4            1           12            3
Longman's beaked whale..........................            0            0            0            0          328           66          328           66
Melon-headed whale..............................           73           15            0            0           73           15          146           29
Pantropical spotted dolphin.....................          271           54          214           43          221           44          706          141
Pygmy killer whale..............................            7            1            0            0           41            8           48           10
Pygmy sperm whale...............................          416           83            0            0          307           61          723          145
Risso's dolphin.................................           30            6            0            0          500          100          530          106
Rough-toothed dolphin...........................           38            8      \b\ 272       \b\ 54          281           56          591          118
Short-finned pilot whale........................          227           45          836          167          841          168        1,904          381
Sperm whale.....................................          175           35          195           39          197           39          567          113
Spinner dolphin.................................          120           24       \b\ 44        \b\ 9          105           21          269           54
Striped dolphin.................................           74           15            0            0          237           47          311           62
Unidentified beaked whale.......................          167           33          123           25          123           25          413           83
Unidentified Mesoplodon.........................            0            0            0            0            0            0            0            0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Annual take by Level B harassment is calculated by dividing the five-year total estimated take by five, rounded to nearest whole number.
\b\ American Samoa stock; stock abundance unknown.

    The acoustic sources proposed to be used by PIFSC are generally of 
low source level, higher frequency, and narrow beamwidth. As described 
previously, there is some minimal potential for temporary effects to 
hearing for certain marine mammals, but most effects would likely be 
limited to temporary behavioral disturbance. Effects on individuals 
that are taken by Level B harassment will likely be limited to 
reactions such as increased swimming speeds, increased surfacing time, 
or decreased foraging (if such activity were occurring), reactions that 
are considered to be of low severity (e.g., Ellison et al., 2012). 
Individuals may move away from the source if disturbed; however, 
because the source is itself moving and because of the directional 
nature of the sources considered here, there is unlikely to be even 
temporary displacement from areas of significance and any disturbance 
would be of short duration. The areas ensonified above the Level B 
harassment threshold during PIFSC surveys are extremely small relative 
to the overall survey areas. Although there is no information on which 
to base any distinction between incidents of harassment and individuals 
harassed, the same factors, in conjunction with the fact that PIFSC 
survey effort is widely dispersed in space and time, indicate that 
repeated exposures of the same individuals would be very unlikely. The 
short term, minor behavioral responses that may occur incidental to 
PIFSC use of acoustic sources, are not expected to result in impacts 
the reproduction or survival of any individuals, much less have an 
adverse impact on the population.
    Similarly, disturbance of hauled-out Hawaiian monk seals by 
researchers (expected in the HARA) are expected to be infrequent and 
cause only a temporary disturbance on the order of minutes. Monitoring 
results from other activities involving the disturbance of pinnipeds 
and relevant studies of pinniped populations that experience more 
regular vessel disturbance indicate that individually significant or 
population level impacts are unlikely to occur. PIFSC's nearshore 
surveys that may result in disturbance to Hawaiian monk seals are 
conducted infrequently, with each individual island visited at most 
once per year. While there is some slight possibility of an individual 
Hawaiian monk seal moving between islands and being exposed to visual 
disturbance from multiple PIFSC surveys over the course of the year, it 
is unlikely that an individual seal would be harassed more than once 
per year. When considering the individual animals likely affected by 
this disturbance, only a small fraction of the estimated population 
abundance of the affected stocks would be expected to experience the 
disturbance. Therefore, the PIFSC activity cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect species 
or stocks through effects on annual rates of recruitment or survival.
    For these reasons, we do not consider the proposed level of take by 
acoustic or visual disturbance to represent a significant additional 
population stressor when considered in context with the proposed level 
of take by M/SI for any species, including those for which no abundance 
estimate is available.

Conclusions

    In summary, as described in the Serious Injury and Mortality 
section, the proposed takes by serious injury or mortality from PIFSC 
activities, alone, are unlikely to adversely affect any species or 
stock through effects on annual rates of recruitment or survival. 
Further, the low severity and magnitude of expected Level B harassment 
is not predicted to affect the reproduction or survival of any 
individual marine mammals, much less the rates of recruitment or 
survival of any species or stock. Therefore, the authorized Level B 
harassment, alone or in combination with the SI/M authorized for some 
species or stocks, will result in a negligible impact on the effected 
stocks and species.
    Based on the analysis contained herein of the likely effects of the

[[Page 15353]]

specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, we preliminarily find that the total marine mammal 
take from the proposed activities will have a negligible impact on the 
affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(A) of the MMPA for specified 
activities. The MMPA does not define a threshold under which the 
authorized number of takes would be considered ``small'' and so, in 
practice, where estimated numbers are available, NMFS compares the 
number of individuals taken to the most appropriate estimation of 
abundance of the relevant species or stock in our determination of 
whether an authorization is limited to small numbers of marine mammals. 
Additionally, other qualitative factors may be considered in the 
analysis, such as the temporal or spatial scale of the activities.
    Please see Tables 17 through 19 for information relating to this 
small numbers analysis. The total amount of taking proposed for 
authorization is less than five percent for a majority of stocks, and 
the total amount of taking proposed for authorization is less than one-
third of the stock abundance for all defined stocks.
    Species without defined stocks typically range across very large 
areas and it is unlikely that PIFSC's proposed activities, with their 
small impact areas, would encounter, much less take more than one third 
of the stock. For species with defined stocks but no abundance 
estimates available (American Samoa stocks of false killer whale, 
rough-toothed dolphin, and spinner dolphin), we note that the 
anticipated number of incidents of take by Level B harassment are very 
low for each species (i.e., 2-54 takes by Level B harassment per year). 
While abundance information is not available for these stocks, we do 
not expect that the proposed annual take by Level B harassment would 
represent more than one third of any population to be taken and 
therefore the total amount of proposed taking would be considered small 
relative to the overall population size.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Adaptive Management

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

Endangered Species Act (ESA)

    There are multiple marine mammal species listed under the ESA with 
confirmed or possible occurrence in the proposed specified geographical 
regions (see Table 3). OPR has initiated consultation with NMFS's 
Pacific Islands Regional Office under section 7 of the ESA on the 
promulgation of five-year regulations and the subsequent issuance of a 
5-year LOA to PIFSC under section 101(a)(5)(A) of the MMPA. This 
consultation will be concluded prior to issuing any final rule.

Request for Information

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

Classification

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

[[Page 15354]]

List of Subjects in 50 CFR Part 219

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

    Dated: March 8, 2021.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 219 is proposed 
to be amended as follows:

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

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

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

0
2. Add subpart G to part 219 to read as follows:
Subpart G--Taking Marine Mammals Incidental to Pacific Islands 
Fisheries Science Center Fisheries Research
Sec.
219.61 Specified activity and specified geographical region.
219.62 Effective dates.
219.63 Permissible methods of taking.
219.64 Prohibitions.
219.65 Mitigation requirements.
219.66 Requirements for monitoring and reporting.
219.67 Letters of Authorization.
219.68 Renewals and modifications of Letters of Authorization.
219.69-219.70 [Reserved]

Subpart G--Taking Marine Mammals Incidental to Pacific Islands 
Fisheries Science Center Fisheries Research


Sec.  219.61   Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Pacific Islands Fisheries Science Center 
(PIFSC) and those persons it authorizes or funds to conduct activities 
on its behalf for the taking of marine mammals that occurs in the areas 
outlined in paragraph (b) of this section and that occurs incidental to 
research survey program operations.
    (b) The taking of marine mammals by PIFSC may be authorized in a 
Letter of Authorization (LOA) only if it occurs during fishery research 
within the Hawaiian Archipelago, Mariana Archipelago, American Samoa 
Archipelago, and Western and Central Pacific Ocean.


Sec.  219.62   Effective dates.

    Regulations in this subpart are effective from [30 DAYS AFTER 
PUBLICATION DATE OF FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE 
DATE OF FINAL RULE].


Sec.  219.63   Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 219.67, the Holder of the LOA (hereinafter ``PIFSC'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  219.61(b) in the following ways, provided PIFSC 
is in compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA:
    (a) By Level B harassment associated with physical or visual 
disturbance of hauled-out pinnipeds;
    (b) By Level B harassment associated with use of active acoustic 
systems; and
    (c) By Level A harassment, serious injury, or mortality provided 
the take is associated with the use of longline gear, trawl gear, or 
deployed instruments and traps.


Sec.  219.64   Prohibitions.

    Notwithstanding takings contemplated in Sec.  219.61 and authorized 
by a LOA issued under Sec.  216.106 of this chapter and Sec.  219.67, 
no person in connection with the activities described in Sec.  219.61 
may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.  216.106 of 
this chapter and Sec.  219.67;
    (b) Take any marine mammal species or stock not specified in such 
LOA;
    (c) Take any marine mammal in any manner other than as specified in 
the LOA;
    (d) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  219.65   Mitigation requirements.

    When conducting the activities identified in Sec.  219.61(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  219.67 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions. (1) PIFSC shall take all necessary measures 
to coordinate and communicate in advance of each specific survey with 
the National Oceanic and Atmospheric Administration's (NOAA) Office of 
Marine and Aviation Operations (OMAO) or other relevant parties on non-
NOAA platforms to ensure that all mitigation measures and monitoring 
requirements described herein, as well as the specific manner of 
implementation and relevant event-contingent decision-making processes, 
are clearly understood and agreed upon. Although the discussion 
throughout these regulations does not always explicitly reference those 
with decision making authority from cooperative platforms, all 
mitigation measures apply with equal force to non-NOAA vessels and 
personnel as they do to NOAA vessels and personnel.
    (2) PIFSC shall coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (Commanding Officer or 
designee(s), as appropriate) and scientific party in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures.
    (3) PIFSC shall coordinate as necessary on a daily basis during 
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
    (4) When deploying any type of sampling gear at sea, PIFSC 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) PIFSC shall implement handling and/or disentanglement protocols 
as specified in the guidance that shall be provided to PIFSC survey 
personnel.
    (b) Vessel strike avoidance. (1) PIFSC must maintain a 100-meter 
(m) separation distance between research vessels and large whales at 
all times. At any time during a survey or transit, if a crew member or 
designated marine mammal observer standing watch sights marine mammals 
that may intersect with the vessel course that individual must 
immediately communicate the presence of marine mammals to the bridge 
for appropriate course alteration or speed reduction, as possible, to 
avoid incidental collisions.
    (2) PIFSC must reduce vessel speed to 10 knots (kt) or less when 
piloting vessels within 1 kilometer (km; as visibility permits) of 
marine mammals.
    (c) Trawl survey protocols. (1) PIFSC shall conduct trawl 
operations as soon as is practicable upon arrival at the sampling 
station.
    (2) PIFSC shall initiate marine mammal watches (visual observation) 
at

[[Page 15355]]

least 30 minutes prior to beginning of net deployment, but shall also 
conduct monitoring during any pre-set activities including trackline 
reconnaissance, CTD casts, and plankton or bongo net hauls. Marine 
mammal watches shall be conducted by scanning the surrounding waters 
with the naked eye and rangefinding binoculars (or monocular). During 
nighttime operations, visual observation shall be conducted using the 
naked eye and available vessel lighting.
    (3) PIFSC shall implement the move-on rule mitigation protocol, as 
described in this paragraph. If one or more marine mammals are observed 
within 500 meters (m) of the planned location in the 10 minutes before 
setting the trawl gear, and are considered at risk of interacting with 
the vessel or research gear, or appear to be approaching the vessel and 
are considered at risk of interaction, NWFSC shall either remain onsite 
or move on to another sampling location. If remaining onsite, the set 
shall be delayed. If the animals depart or appear to no longer be at 
risk of interacting with the vessel or gear, a further 10 minute 
observation period shall be conducted. If no further observations are 
made or the animals still do not appear to be at risk of interaction, 
then the set may be made. If the vessel is moved to a different section 
of the sampling area, the move-on rule mitigation protocol would begin 
anew. If, after moving on, marine mammals remain at risk of 
interaction, the PIFSC shall move again or skip the station. Marine 
mammals that are sighted further than 500 m from the vessel shall be 
monitored to determine their position and movement in relation to the 
vessel to determine whether the move-on rule mitigation protocol should 
be implemented. PIFSC may use best professional judgment in making 
these decisions.
    (4) PIFSC shall maintain visual monitoring effort during the entire 
period of time that trawl gear is in the water (i.e., throughout gear 
deployment, fishing, and retrieval). If marine mammals are sighted 
before the gear is fully removed from the water, PIFSC shall take the 
most appropriate action to avoid marine mammal interaction. PIFSC may 
use best professional judgment in making this decision. PIFSC must 
retrieve gear immediately if marine mammals are believed to be 
captured/entangled in a net or associated gear (e.g., lazy line) and 
follow disentanglement protocols.
    (5) If trawling operations have been suspended because of the 
presence of marine mammals, PIFSC may resume trawl operations when 
practicable only when the animals are believed to have departed the 
area. PIFSC may use best professional judgment in making this 
determination.
    (6) PIFSC shall implement standard survey protocols to minimize 
potential for marine mammal interactions, including maximum tow 
durations at target depth and maximum tow distance, and shall carefully 
empty the trawl as quickly as possible upon retrieval.
    (7) Dead fish and bait shall not be discarded from the vessel while 
actively fishing. Dead fish and bait shall be discarded after gear is 
retrieved and immediately before the vessel leaves the sampling 
location for a new area.
    (d) Longline survey protocols. (1) PIFSC shall deploy longline gear 
as soon as is practicable upon arrival at the sampling station.
    (2) PIFSC shall initiate marine mammal watches (visual observation) 
no less than 30 minutes (or for the duration of transit between set 
locations, if shorter than 30 minutes) prior to both deployment and 
retrieval of longline gear. Marine mammal watches shall be conducted by 
scanning the surrounding waters with the naked eye and rangefinding 
binoculars (or monocular). During nighttime operations, visual 
observation shall be conducted using the naked eye and available vessel 
lighting.
    (3) PIFSC shall implement the move-on rule mitigation protocol, as 
described in this paragraph. If one or more marine mammals are observed 
in the vicinity of the planned location before gear deployment, and are 
considered at risk of interacting with the vessel or research gear, or 
appear to be approaching the vessel and are considered at risk of 
interaction, PIFSC shall either remain onsite or move on to another 
sampling location. If remaining onsite, the set shall be delayed. If 
the animals depart or appear to no longer be at risk of interacting 
with the vessel or gear, a further observation period shall be 
conducted. If no further observations are made or the animals still do 
not appear to be at risk of interaction, then the set may be made. If 
the vessel is moved to a different section of the sampling area, the 
move-on rule mitigation protocol would begin anew. If, after moving on, 
marine mammals remain at risk of interaction, the PIFSC shall move 
again or skip the station. Marine mammals that are sighted shall be 
monitored to determine their position and movement in relation to the 
vessel to determine whether the move-on rule mitigation protocol should 
be implemented. PIFSC may use best professional judgment in making 
these decisions. PIFSC must retrieve gear immediately if marine mammals 
are believed to be captured/entangled in a net, line, or associated 
gear and follow disentanglement protocols.
    (4) PIFSC shall maintain visual monitoring effort during the entire 
period of gear deployment and retrieval. If marine mammals are sighted 
before the gear is fully deployed or retrieved, PIFSC shall take the 
most appropriate action to avoid marine mammal interaction. PIFSC may 
use best professional judgment in making this decision.
    (5) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, PIFSC may resume such 
operations when practicable only when the animals are believed to have 
departed the area. PIFSC may use best professional judgment in making 
this decision.
    (6) When conducting longline research in Hawai[revaps]i, American 
Samoa, Guam, the Commonwealth of the Northern Marianas, or EEZs of the 
Pacific Insular Areas, PIFSC shall adhere to the requirements on 
commercial longline gear as specified in 50 CFR parts 229, 300, 404, 
600, and 665, and shall adhere to the following procedures when setting 
and retrieving longline gear:
    (i) When shallow-setting anywhere and setting longline gear from 
the stern, completely thawed and blue-dyed bait shall be used (two one-
pound containers of blue-dye shall be kept on the boat for backup). 
Fish parts and spent bait with all hooks removed shall be kept for 
strategic offal discard. Retained swordfish shall be cut in half at the 
head; used heads and livers shall also be used for strategic offal 
discard. Setting shall only occur at night and begin 1 hour after local 
sunset and finish 1 hour before next sunrise, with lighting kept to a 
minimum.
    (ii) When deep-setting north of 23[deg] N and setting longline gear 
from the stern, 45 gram (g) or heavier weights shall be attached within 
1 m of each hook. A line shooter shall be used to set the mainline. 
Completely thawed and blue-dyed bait shall be used (two 1-pound 
containers of blue-dye shall be kept on the boat for backup). Fish 
parts and spent bait with all hooks removed shall be kept for strategic 
offal discard. Retained swordfish shall be cut in half at the head; 
used heads and livers shall also be used for strategic offal discard.
    (iii) When shallow-setting anywhere and setting longline gear from 
the side, mainline shall be deployed from the port or starboard side at 
least 1 m forward of the stern corner. If a line

[[Page 15356]]

shooter is used, it shall be mounted at least 1 m forward from the 
stern corner. A specified bird curtain shall be used aft of the setting 
station during the set. Gear shall be deployed so that hooks do not 
resurface. 45 g or heavier weights shall be attached within 1 m of each 
hook.
    (iv) When deep-setting north of 23[deg] N and setting longline gear 
from the side, mainline shall be deployed from the port or starboard 
side at least 1 m forward of the stern corner. If a line shooter is 
used, it shall be mounted at least 1 m forward from the stern corner. A 
specified bird curtain shall be used aft of the setting station during 
the set. Gear shall be deployed so that hooks do not resurface. 45 g or 
heavier weights shall be attached within 1 m of each hook.
    (7) Dead fish and bait shall not be discarded from the vessel while 
actively fishing. Dead fish and bait shall be discarded after gear is 
retrieved and immediately before the vessel leaves the sampling 
location for a new area.
    (e) Small boat and diver protocols. (1) Surveys and in-water 
operations shall be conducted with at least two divers observing for 
the proximity of marine mammals, a coxswain driving the small boat, and 
a topside spotter. Spotters and coxswains shall be tasked with looking 
out for divers, marine mammals, and environmental hazards. Topside 
spotters may also work as coxswains, depending on team assignment and 
boat layout.
    (2) Before approaching any shoreline or exposed reef, all observers 
shall examine any visible land areas for the presence of marine 
mammals. Scientists, divers, and coxswains shall follow best management 
practices (BMPs) for boat operations and diving activities, including:
    (i) Maintain constant vigilance for the presence of marine mammals.
    (ii) Marine mammals shall not be encircled or trapped between 
multiple vessels or between vessels and the shore.
    (iii) If approached by a marine mammal, the engine shall be put in 
neutral and the animal allowed to pass.
    (iv) All in-water work not already underway shall be postponed 
until whales are beyond 100 yards or other marine mammals are beyond 50 
yards from the vessel or diver, unless the work is covered under a 
separate permit that allows activity in proximity to marine mammals. 
Activity shall commence only after the animal(s) depart the area.
    (v) If marine mammals enter the area while in-water work is already 
in progress, the activity may continue only when that activity has no 
reasonable expectation to adversely affect the animal(s). PIFSC may use 
best professional judgment in making this decision.
    (vi) Personnel shall make no attempt to feed, touch, ride, or 
otherwise intentionally interact with any marine mammals unless 
undertaken to rescue a marine mammal or otherwise authorized by another 
permit.
    (vii) Mechanical equipment shall be monitored to ensure no 
entanglements occur with protected species.
    (viii) Team members shall immediately respond to an entangled 
animal, halting operations and providing and onsite response assessment 
(allowing the animal to disentangle itself, assisting with 
disentanglement, etc.), unless doing so would compromise human safety.
    (f) Marine debris research and removal protocols. (1) Prior to 
initiating any marine debris removal operations, marine debris 
personnel shall thoroughly examine the beaches and near shore 
environments/waters for Hawaiian monk seals before approaching marine 
debris sites and initiating removal activities.
    (2) Debris shall be retrieved in compliance with all Federal laws, 
rules, and regulations governing wildlife in the area, including 
maintaining a minimum distance of 50 yards from all monk seals and a 
minimum of 100 yards from female seals with pups.
    (g) Bottomfishing protocols. (1) PIFSC shall initiate marine mammal 
watches (visual observation) no less than 30 minutes (or for the 
duration of transit between set locations, if shorter than 30 minutes) 
prior to both deployment and retrieval of bottomfishing hook-and-line 
gear. Marine mammal watches shall be conducted by scanning the 
surrounding waters with the naked eye and rangefinding binoculars (or 
monocular). During nighttime operations, visual observation shall be 
conducted using the naked eye and available vessel lighting.
    (2) PIFSC shall implement the move-on rule mitigation protocol, as 
described in this paragraph. If one or more marine mammals are observed 
in the vicinity of the planned location before gear deployment, and are 
considered at risk of interacting with the vessel or research gear, or 
appear to be approaching the vessel and are considered at risk of 
interaction, PIFSC shall either remain onsite or move on to another 
sampling location. If remaining onsite, the set shall be delayed. If 
the animals depart or appear to no longer be at risk of interacting 
with the vessel or gear, a further observation period shall be 
conducted. If no further observations are made or the animals still do 
not appear to be at risk of interaction, then the set may be made. If 
the vessel is moved to a different section of the sampling area, the 
move-on rule mitigation protocol would begin anew. If, after moving on, 
marine mammals remain at risk of interaction, the PIFSC shall move 
again or skip the station. Marine mammals that are sighted shall be 
monitored to determine their position and movement in relation to the 
vessel to determine whether the move-on rule mitigation protocol should 
be implemented. PIFSC may use best professional judgment in making 
these decisions.
    (3) Dead fish and bait shall not be discarded from the vessel while 
actively fishing. Dead fish and bait shall be discarded after gear is 
retrieved and immediately before the vessel leaves the sampling 
location for a new area.
    (4) If a hooked fish is retrieved and it appears to the fisher 
(based on best professional judgment) that it has been damaged by a 
marine mammal, visual monitoring shall be enhanced around the vessel 
for the next ten minutes. Fishing may continue during this time. If a 
shark is sighted, visual monitoring may return to normal. If a marine 
mammal is seen in the vicinity of a bottomfishing operation, the gear 
shall be retrieved immediately and the vessel shall move to another 
sampling location where marine mammals are not present. Catch loss and 
a ``move on'' for marine mammals shall be tallied on the data sheet.
    (5) If bottomfishing gear is lost while fishing, visual monitoring 
shall be enhanced around the vessel for the next ten minutes. Fishing 
may continue during this time. If a shark is sighted, visual monitoring 
may return to normal. If a marine mammal is observed in the vicinity, 
it shall be monitored until a determination can be made (based on best 
professional judgment) of whether gear is sighted attached to the 
animal, gear is suspected to be on the animal, or gear is not observed 
on the animal and it behaves normally. If gear is sighted with gear 
attached or suspected to be attached, procedures and actions for 
incidental take shall be initiated, as outlined in Sec.  219.66. Gear 
loss and a ``move on'' for marine mammals shall be tallied on the data 
sheet.
    (h) Instrument and trap deployments. (1) PIFSC shall initiate 
marine mammal watches (visual observation) no less than 30 minutes (or 
for the duration of transit between set locations, if shorter than 30 
minutes) prior to both deployment and retrieval of instruments and 
traps. Marine mammal watches shall be conducted by scanning the 
surrounding waters with the naked eye and rangefinding binoculars (or 
monocular).

[[Page 15357]]

    (2) PIFSC shall implement the move-on rule mitigation protocol, as 
described in this paragraph. If one or more marine mammals are observed 
in the vicinity of the planned location before gear deployment, and are 
considered at risk of interacting with the vessel or research gear, or 
appear to be approaching the vessel and are considered at risk of 
interaction, PIFSC shall either remain onsite or move on to another 
sampling location. If remaining onsite, the instrument or trap 
deployment shall be delayed. If the animals depart or appear to no 
longer be at risk of interacting with the vessel or gear, a further 
observation period shall be conducted. If no further observations are 
made or the animals still do not appear to be at risk of interaction, 
then the gear may be deployed. If the vessel is moved to a different 
section of the sampling area, the move-on rule mitigation protocol 
would begin anew. If, after moving on, marine mammals remain at risk of 
interaction, the PIFSC shall move again or skip the station. Marine 
mammals that are sighted shall be monitored to determine their position 
and movement in relation to the vessel to determine whether the move-on 
rule mitigation protocol should be implemented. PIFSC may use best 
professional judgment in making these decisions. PIFSC must retrieve 
gear immediately if marine mammals are believed to be entangled in an 
instrument or trap line or associated gear and follow disentanglement 
protocols.


Sec.  219.66   Requirements for monitoring and reporting.

    (a) Compliance coordination. PIFSC shall designate a compliance 
coordinator who shall be responsible for ensuring compliance with all 
requirements of any LOA issued pursuant to Sec.  216.106 of this 
chapter and Sec.  219.67 and for preparing for any subsequent 
request(s) for incidental take authorization.
    (b) Visual monitoring program. (1) Marine mammal visual monitoring 
shall occur prior to deployment of trawl nets, longlines, bottomfishing 
gear, instruments, and traps, respectively; throughout deployment of 
gear and active fishing of research gears (not including longline soak 
time); prior to retrieval of longline gear; and throughout retrieval of 
all research gear.
    (2) Marine mammal watches shall be conducted by watch-standers 
(those navigating the vessel and/or other crew) at all times when the 
vessel is being operated.
    (c) Training. (1) PIFSC must conduct annual training for all chief 
scientists and other personnel who may be responsible for conducting 
dedicated marine mammal visual observations to explain mitigation 
measures and monitoring and reporting requirements, mitigation and 
monitoring protocols, marine mammal identification, completion of 
datasheets, and use of equipment. PIFSC may determine the agenda for 
these trainings.
    (2) PIFSC shall also dedicate a portion of training to discussion 
of best professional judgment, including use in any incidents of marine 
mammal interaction and instructive examples where use of best 
professional judgment was determined to be successful or unsuccessful.
    (3) PIFSC shall coordinate with NMFS' Office of Science and 
Technology to ensure training and guidance related to handling 
procedures and data collection is consistent with other fishery science 
centers, where appropriate.
    (d) Handling procedures and data collection. (1) PIFSC must develop 
and implement standardized marine mammal handling, disentanglement, and 
data collection procedures. These standard procedures will be subject 
to approval by NMFS's Office of Protected Resources (OPR).
    (2) For any marine mammal interaction involving the release of a 
live animal, PIFSC shall collect necessary data to facilitate a serious 
injury determination, when practicable.
    (3) PIFSC shall provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring an individual aboard a vessel, 
assess the level of consciousness, remove fishing gear, return an 
individual to water, and log activities pertaining to the interaction.
    (4) PIFSC shall record marine mammal interaction information on 
standardized forms, which will be subject to approval by OPR. PIFSC 
shall also answer a standard series of supplemental questions regarding 
the details of any marine mammal interaction.
    (e) Reporting. (1) Marine mammal capture/entanglements (live or 
dead) must be reported immediately to the relevant regional stranding 
coordinator (Hawai[revaps]i Statewide Marine Animal Stranding, 
Entanglement, and Reporting Hotline, 888-256-9840; Guam Conservation 
Office Hotline, 671-688-3297; Commonwealth of the Northern Mariana 
Islands Division of Fish and Wildlife Hotline, 670-287-8537; American 
Samoa Department of Marine and Wildlife Resources, 684-633-4456), OPR 
(301-427-8401), and NMFS Pacific Islands Regional Office (808-725-
5000).
    (2) PIFSC shall report all incidents of marine mammal interaction 
to NMFS's Protected Species Incidental Take database within 48 hours of 
occurrence and shall provide supplemental information to OPR upon 
request. Information related to marine mammal interaction (animal 
captured or entangled in research gear) must include details of survey 
effort, full descriptions of any observations of the animals, the 
context (vessel and conditions), decisions made, and rationale for 
decisions made in vessel and gear handling.
    (3) PIFSC shall submit an annual summary report to OPR:
    (i) The report must be submitted no later than ninety days 
following the end of a given calendar year. The first annual report 
must cover the period from the date of issuance of the LOA through the 
end of that calendar year and the entire first full calendar year of 
the authorization. Subsequent reports will cover only one full calendar 
year. PIFSC shall provide a final report within thirty days following 
resolution of comments on the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, EM 300, 
and ADCP Ocean Surveyor (or equivalent sources) were predominant and 
associated pro-rated estimates of actual take;
    (B) Summary information regarding use of all longline, 
bottomfishing, and trawl gear, including number of sets, tows, etc., 
specific to each gear;
    (C) Accounts of surveys where marine mammals were observed during 
sampling but no interactions occurred;
    (D) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why and, if released 
alive, serious injury determinations;
    (E) Summary information related to any disturbance of pinnipeds, 
including event-specific total counts of animals present, counts of 
reactions according to the three-point scale, and distance of closest 
approach;
    (F) A written description of any mitigation research investigation 
efforts and findings (e.g., line modifications);
    (G) A written evaluation of the effectiveness of PIFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any; and
    (H) A summary of all relevant training provided by PIFSC and any

[[Page 15358]]

coordination with NMFS Office of Science and Technology and the Pacific 
Islands Regional Office.
    (f) Reporting of injured or dead marine mammals. (1) In the 
unanticipated event that the activity defined in Sec.  219.61(a) 
clearly causes the take of a marine mammal in a prohibited manner, 
PIFSC personnel engaged in the research activity shall immediately 
cease such activity until such time as an appropriate decision 
regarding activity continuation can be made by the PIFSC Director (or 
designee). The incident must be reported immediately to OPR and the 
NMFS Pacific Islands Regional Office. OPR will review the circumstances 
of the prohibited take and work with PIFSC to determine what measures 
are necessary to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. The immediate decision made by PIFSC regarding 
continuation of the specified activity is subject to OPR concurrence. 
The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident including, but not limited to, 
monitoring prior to and occurring at time of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s) (e.g. dead, injured but alive, injured 
and moving, blood or tissue observed in the water, status unknown, 
disappeared, etc.); and
    (ix) Photographs or video footage of the animal(s).
    (2) In the event that PIFSC discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), PIFSC shall immediately report the incident to OPR 
and the NMFS Pacific Islands Regional Office The report must include 
the information identified in paragraph (f)(1) of this section. 
Activities may continue while OPR reviews the circumstances of the 
incident. OPR will work with PIFSC to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (3) In the event that PIFSC discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with 
or related to the activities defined in Sec.  219.61(a) (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), PIFSC shall report the incident to 
OPR and the Pacific Islands Regional Office, NMFS, within 24 hours of 
the discovery. PIFSC shall provide photographs or video footage or 
other documentation of the stranded animal sighting to OPR.
    (4) In the event of a ship strike of a marine mammal by any PIFSC 
or partner vessel involved in the activities covered by the 
authorization, PIFSC or partner shall immediately report the 
information in paragraph (f)(1) of this section, as well as the 
following additional information:
    (i) Vessel's speed during and leading up to the incident;
    (ii) Vessel's course/heading and what operations were being 
conducted;
    (iii) Status of all sound sources in use;
    (iv) Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    (v) Estimated size and length of animal that was struck; and
    (vi) Description of the behavior of the marine mammal immediately 
preceding and following the strike.


Sec.  219.67   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, PIFSC must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, PIFSC may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, PIFSC must apply 
for and obtain a modification of the LOA as described in Sec.  219.68.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  219.68  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
219.67 for the activity identified in Sec.  219.61(a) shall be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section); and
    (2) OPR determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), OPR may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 of this chapter and 
219.67 for the activity identified in Sec.  219.61(a) may be modified 
by OPR under the following circumstances:
    (1) OPR may utilize an adaptive management process to modify or 
augment the existing mitigation, monitoring, or reporting measures 
(after consulting with PIFSC regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in 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 PIFSC's monitoring reports from the previous 
year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.

[[Page 15359]]

    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) If OPR determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in LOAs issued pursuant to Sec.  216.106 of this 
chapter and Sec.  219.67, 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.  219.69--219.70   [Reserved]

[FR Doc. 2021-05128 Filed 3-19-21; 8:45 am]
BILLING CODE 3510-22-P