Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries and Ecosystem Research, 30080-30129 [2021-11188]

Download as PDF 30080 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules 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). DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 219 [Docket No. 210519–0110] RIN 0648–BK39 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries and Ecosystem Research National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule, request for comments. AGENCY: NMFS Office of Protected Resources (OPR) has received a request from the NMFS’ Northeast Fisheries Science Center (NEFSC) for authorization to take marine mammals incidental to fisheries and ecosystem research conducted in the Atlantic Ocean, over the course of five years. This would be the second set of regulations and 5-year LOA issued to the NEFSC. The proposed regulations would be effective September 10, 2021 through September 9, 2026. As required by the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final announcement of our decision. DATES: Comments and information must be received no later than July 6, 2021. ADDRESSES: You may submit comments on this document, identified by NOAA– NMFS–2021–0053, by the following method: • Electronic submission: Submit all public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov, enter 0648–BK39 in the ‘‘Search’’ box, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov SUMMARY: VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Availability A copy of NEFSC’s application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-research-and-otheractivities. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT). Background The MMPA prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review. Authorization to incidentally take marine mammals must be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other ‘‘means of effecting the least practicable adverse impact’’ on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as ‘‘mitigation’’); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Purpose and Need for This Regulatory Action This proposed rule would establish a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of marine mammals incidental to the NEFSC’s fisheries research activities in the Atlantic Ocean. We received an application from the NEFSC requesting regulations and a 5-year LOA to take multiple species of marine mammals incidental to fisheries and ecosystem research in the Atlantic Ocean. Take by mortality or serious injury could occur incidental to the use of fisheries research gear. Take by Level B harassment could occur incidental to the use of active acoustic devices in the Atlantic coast region. Legal Authority for the Regulatory Action Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the ‘‘least practicable adverse impact’’ on the affected species or stocks and their habitat (see the discussion below in the ‘‘Proposed Mitigation’’ section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing 5-year regulations, and for any subsequent LOAs. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements. Summary of Major Provisions Within the Proposed Regulations The following provides a summary the major provisions within this proposed rulemaking for the NEFSC fisheries research activities in the Northwest Atlantic Ocean. They include, but are not limited to: • Training scientists and vessel crew in marine mammal detection and identification, rule compliance, and marine mammal handling. • Monitoring of the sampling areas to detect the presence of marine mammals before gear deployment and while gear is in the water. E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules • Implementing standard tow durations to reduce the likelihood of incidental take of marine mammals. • Implementing the mitigation strategy known as the ‘‘move-on rule,’’ which incorporates best professional judgment, when necessary during fisheries research. • Removing gear from water if marine mammals are at-risk or interact with gear. • Complying with applicable vessel speed restrictions and separation distances from marine mammals. • Complying with applicable and relevant take reduction plans for marine mammals. draft-supplemental-programmaticenvironmental-assessment-nefscresearch-now-available. Information in the PEA, SPEA, NEFSC’s application, and this notice collectively provide the environmental information related to proposed issuance of these regulations and subsequent incidental take authorization for public review and comment. We will review all comments submitted in response to this notice prior to concluding our NEPA process and making a final decision on NEFSC’s request. National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must review our proposed action (i.e., the issuance of an IHA) with respect to potential impacts on the human environment. In July 2016, the NEFSC published a Final Programmatic Environmental Assessment (PEA) for Fisheries Research Conducted and Funded by the NEFSC (NMFS 2016a) to consider the direct, indirect and cumulative effects to the human environment resulting from NEFSC’s activities as well as OPR’s issuance of the regulations and subsequent incidental take authorization. NMFS made the PEA available to the public for review and comment, in relation specifically to its suitability for assessment of the impacts of our action under the MMPA. OPR signed a Finding of No Significant Impact (FONSI) on August 3, 2016. These documents are available at https://www.fisheries.noaa.gov/action/ incidental-take-authorization-noaafisheries-nefsc-fisheries-and-ecosystemresearch. On September 18, 2020, NMFS announced the availability of a Draft Supplemental PEA for Fisheries Research Conducted and Funded by the Northeast Fisheries Science Center for review and comment (85 FR 58339). The purpose of the Draft SPEA is to evaluate potential direct, indirect, and cumulative effects of unforeseen changes in research that were not analyzed in the 2016 PEA, or new research activities along the U.S. East Coast. Where necessary, updates to certain information on species, stock status or other components of the affected environment that may result in different conclusions from the 2016 PEA are presented in this analysis. The supplemental PEA is available at https://www.fisheries.noaa.gov/action/ On September 2, 2020, NMFS received an application from NEFSC requesting promulgation of regulations and issuance of a 5-year LOA to take marine mammals incidental to fisheries and ecosystem research in the Atlantic Ocean. NEFSC subsequently submitted revised applications on October 29, 2020; November 19, 2020; and December 3, 2020. The December application was deemed adequate and complete on December 9, 2020. In accordance with the MMPA, we published a notice of receipt (NOR) of the NEFSC’s application in the Federal Register, requesting comments and information related to the NEFSC request for thirty days (85 FR 83901, December 23, 2020). We did not receive comments on the NOR. The NEFSC’s request is for take of a small number of 10 species of marine mammals by mortality or serious injury incidental to gear interaction and 32 species or stocks by Level B harassment incidental to use of active acoustic devices during fisheries and ecosystem research. NMFS previously issued a LOA to NEFSC for similar work (81 FR 64442, September 20, 2016); that LOA expires September 9, 2021. To date, NEFSC has complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the current LOA and did not exceed authorized take for a species. NEFSC annual monitoring reports can be found at www.fisheries.noaa.gov/action/ incidental-take-authorization-noaafisheries-nefsc-fisheries-and-ecosystemresearch. VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Summary of Request Description of Proposed Activity Overview The NEFSC is the research arm of NMFS in the Greater Atlantic Region (Maine to Virginia). The NEFSC plans, develops, and manages a multidisciplinary program of basic and applied research to generate the information necessary for the PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 30081 conservation and management of the region’s living marine resources, including the region’s marine and anadromous fish and invertebrate populations to ensure they remain at sustainable and healthy levels. The NEFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment from fishery independent (i.e., non-commercial or recreational fishing) platforms. Surveys are conducted from NOAA-owned and operated vessels, NOAA chartered vessels, or research partner-owned or chartered vessels in the state and Federal waters of the Atlantic Ocean from Maine to Florida. The NEFSC plans to administer, fund, or conduct 59 fisheries and ecosystem research survey programs over the 5year period the proposed regulations would be effective (Table 1). Of the 59 surveys, only 42 involve gear and equipment with the potential to take marine mammals. Gear types include towed trawl nets fished at various levels in the water column, dredges, gillnets, traps, longline and other hook and line gear. Surveys using any type of seine net (e.g., gillnets), trawl net, or hook and line (e.g., longlines) have the potential for marine mammal interaction (e.g., entanglement, hooking) resulting in M/ SI harassment. In addition, the NEFSC conducts hydrographic, oceanographic, and meteorological sampling concurrent with many of these surveys which requires the use of active acoustic devices (e.g., side-scan sonar, echosounders). These active sonars result in elevated sound levels in the water column, potentially causing behavioral disturbance rising to the level of harassment (Level B). Dates and Duration NEFSC would conduct research yearround; however, certain surveys would occur seasonally (Table 1). The proposed regulations and associated LOA would be valid September 10, 2021 through September 9, 2026. Specified Geographical Region The NEFSC would conduct fisheries research activities off of the U.S. Atlantic coast within the Northeast U.S. Continental Shelf Large Marine Ecosystem (NE LME), an area defined as the 200 miles off the shoreline and reaching from the U.S.-Canada border to Cape Hatteras (Figure 1). The NE LME is divided into four areas: The Gulf of Maine (GOM), Georges Bank (GB), Southern New England (SNE), and the Mid-Atlantic Bight (MAB). A small number of NEFSC surveys into the Southeast U.S. Continental Shelf LME E:\FR\FM\04JNP2.SGM 04JNP2 30082 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules (SE LME) and, rarely, north into the Scotian Shelf LME. BILLING CODE 3510–22–P BILLING CODE 3510–22–C VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2 EP04JN21.000</GPH> Figure 1. NEFSC Research Area Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules The Atlantic coast region extends from the Gulf of Maine (to the U.S. and Canada border) past Cape Hatteras to Florida. The region is characterized by its temperate climate and proximity to the Gulf Stream, and is generally considered to be of moderately high productivity, although the portion of the region from Cape Cod to Cape Hatteras is one of the most productive areas in the world due to upwellings along the shelf break created by the western edge of the Gulf Stream. Sea surface temperatures (SST) exhibit a broad range across this region, with winter temperatures ranging from 2–20 °C in the north and 15–22 °C in the south, while summer temperatures, consistent in the south at approximately 28 °C, range from 15–27 °C in the northern portion. The northern portion of this region (i.e., north of Cape Hatteras) is more complex, with four major sub-areas: The Gulf of Maine, Georges Bank, southern New England, and the Mid-Atlantic Bight. Cold, low-salinity water transports in the Labrador Current from the Arctic Ocean into the Gulf of Maine and exits through the Great South Channel; upwellings occur around Georges Bank. South of Cape Cod, there is strong stratification along the coast where large estuaries occur (e.g., Chesapeake Bay, Pamlico Sound). The Gulf Stream is highly influential on both the northern and southern portions of the region, but in different ways. Meanders of the current directly affect the southern portion of the Gulf Stream, where it is closer to shore, while warm-core rings indirectly affect the northern portion (Belkin et al., 2009). In addition, subarctic influences can reach as far south as the MidAtlantic Bight, but the convergence of the Gulf Stream with the coast near Cape Hatteras does not allow for significant northern influence into waters of the South Atlantic Bight. Gulf of Maine—The Gulf of Maine (GOM) is an enclosed coastal sea characterized by relatively cold waters and deep basins. Several geographic features bound the GOM including Brown’s Bank on the east, Maine and Nova Scotia to the north, Maine, New Hampshire, and Massachusetts on the west, and Cape Cod and Georges Bank to the south. Retreating glaciers (18,000– 14,000 years ago) formed a complex system of deep basins, moraines, and rocky protrusions, leaving behind a variety of sediment types including silt, sand, clay, gravel, and boulders. There exists patchy distribution of sediments on the seafloor throughout the GOM, with occurrence largely related to the bottom topography. VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Oceanic circulation in the GOM exhibits a general counterclockwise current, influenced primarily by cold water masses moving in from the Scotian Shelf and offshore. Although large-scale water patterns are generally counterclockwise around the GOM, many small gyres and minor currents do occur. Freshwater runoff from the many rivers along the coast into the GOM influences coastal circulation as well. These water movements feed into and affect the circulation patterns on Georges Bank and in Southern New England. Georges Bank—Georges Bank (GB) is an elongated extension of the northeastern U.S. continental shelf, characterized by a steep slope on its northern edge and a broad, flat, and gently sloping southern flank. The Gulf of Maine lies to the north of GB, the Northeast Channel (between GB and Browns Bank) is to the east; the continental slope lies to the south, and the Great South Channel separates GB and Southern New England to the west. Although the top of GB is predominantly characterized by sandy sediment, glacial retreat during the late Pleistocene era resulted in deposits of gravel along the northern edge of GB, and some patches of silt and clay can be found on the sea floor. The most dominant oceanographic features of GB include a weak but persistent clockwise gyre that circulates over the whole bank, strong tidal flows (mainly northwest and southeast) and strong but intermittent storm-induced currents. The strong tidal currents result in vertically well-mixed waters over the bank. The southwestern flow of shelf and slope water that forms a countervailing current to the Gulf Stream drives the clockwise GB gyre. Mid-Atlantic Bight—The Mid-Atlantic Bight (MAB) includes the continental shelf and slope waters from GB to Cape Hatteras, NC. The retreat of the last ice sheet shaped the morphology and sediments of the MAB. The continental shelf south of New England is broad and flat, dominated by fine grained sediments (sand and silt). Patches of gravel exist in places on the sea floor, such as on the western flank of the Great South Channel. The shelf slopes gently away from the shore out to approximately 100 to 200 kilometers (km) (62 to 124 miles (mi)) offshore, where it transforms into the continental slope at the shelf break (at water depths of 100 to 200 m (328 to 656 ft). Along the shelf break, numerous deep-water canyons incise the slope and shelf. The sediments and topography of the canyons are much more heterogeneous than the predominantly PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 30083 sandy top of the shelf, with steep walls and outcroppings of bedrock and deposits of clay. The southwestern flow of cold shelf water feeding out of the GOM and off GB dominates the circulatory patterns in this area. The countervailing Gulf Stream provides a source of warmer water along the coast as warm-core rings and meanders break off from the Gulf Stream and move shoreward, mixing with the colder shelf and slope water. As the shelf plain narrows to the south (the extent of the continental shelf is narrowest at Cape Hatteras), the warmer Gulf Stream waters run closer to shore. Southern New England—The Southern New England (SNE) subarea extends from the Great South Channel in the east to the MAB in the west. The southwestern flow of cold shelf water feeding out of the GOM and off GB dominates the circulatory patterns in this area. The SNE continental shelf is a gently sloping region with smooth topography. The shelf is approximately 100 km (62 mi) wide, and the shelf break occurs at depths of between 100 to 200 m (328 to 656 ft). The continental slope extends from the shelf break to a depth of 2 km (6,562 ft). This zone has a relatively steep gradient, and the relief is moderately smooth. The continental rise (2 to 6 km; 500 to 19,700 ft) is similar to the slope in having only gradual changes in bathymetry. However, the overall gradient of the continental rise is less than that of the continental slope (Theroux and Wigley, 1998). Sediments of the SNE subarea consist of fine-grained sand and silt. Patches of gravel exist in places on the sea floor, such as on the western flank of the Great South Channel. Currents and historic disposal of dredged material may influence water and sediment quality within the SNE. Southeast U.S. Continental Shelf Large Marine Ecosystem: This area covers the Atlantic Ocean extending approximately 930 miles from Cape Hatteras, NC south to the Straits of Florida (Yoder, 1991). The continental shelf in the region reaches up to approximately 120 miles offshore. The Gulf Stream Current influences the region with minor upwelling occurring along the Gulf Stream front. The area is approximately 115,000 square miles, includes several protected areas and coral reefs (Aquarone, 2008); numerous estuaries and bays, such as the Albemarle-Pamlico Sound, nearshore and barrier islands; and extensive coastal marshes that provide valuable ecosystem services and habitats for numerous marine and estuarine species. A six- to 12-mile wide coastal zone is characterized by high levels of primary E:\FR\FM\04JNP2.SGM 04JNP2 30084 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules production throughout the year, while offshore, on the middle and outer shelf, upwelling along the Gulf Stream front and intrusions from the Gulf Stream cause seasonal phytoplankton blooms. Because of its high productivity, this sub-region supports active commercial and recreational fisheries (Shertzer et al. 2009). Detailed Description of Specific Activity The Federal Government has a trust responsibility to protect living marine resources in waters of the U.S., also referred to as Federal waters. These waters generally lie 3 to 200 nautical miles (nmi) from the shoreline. Those waters 3–12 nmi offshore comprise Federal territorial waters and those 12to-200 nmi offshore comprise the Exclusive Economic Zone (EEZ), except where other nations have adjacent territorial claims. NOAA also conducts research to foster resource protection in state waters (i.e., estuaries and oceanic waters within 3 nmi of shore). The U.S. government has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside of the U.S. EEZ (i.e., the high seas). To carry out its responsibilities over Federal and international waters, Congress has enacted several statutes authorizing certain Federal agencies to administer programs to manage and protect living marine resources. Among these Federal agencies, NOAA has the primary responsibility for protecting marine finfish and shellfish species and their habitats. Within NOAA, NMFS has been delegated primary responsibility for the science-based management, conservation, and protection of living marine resources under statutes including the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the Atlantic Coastal Fisheries Cooperative Management Act (ACA), and the Atlantic Striped Bass Conservation Act. Within NMFS, six Regional Fisheries Science Centers direct and coordinate the collection of scientific information needed to inform fisheries management decisions. Each Fisheries Science Center VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 is a distinct entity and is the scientific focal point for a particular region. The NEFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in the Atlantic coast region from Maine to northeast Florida. The NEFSC provides scientific information to support the Mid-Atlantic Fishery Management Council and other domestic fisheries management organizations. Specifically, NEFSC develops the scientific information required for fishery resource conservation, fishery development and utilization, habitat conservation, and protection of marine mammals and endangered marine species. Research is pursued to address specific needs in population dynamics, fishery biology and economics, engineering and gear development, and protected species biology. Specifically, research includes monitoring fish stock recruitment, abundance, survival and biological rates, geographic distribution of species and stocks, ecosystem process changes, and marine ecological research. The NEFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. NEFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. For other types of surveys, cooperating scientists may conduct research onboard non-NOAA vessels. The NEFSC proposes to administer and conduct 59 survey programs over the 5-year period. Forty-two of the 59 total surveys/ projects involve gear and equipment with the potential to take marine mammals (by mortality or serious injury (M/SI) or Level B harassment). We note the need for additional surveys could arise during the time period this proposed rule is effective, or some of the identified surveys could be eliminated or reduced in effort. Research activities associated with the requested LOA are not necessarily limited to the specific surveys shown in Table 1; however, any other surveys conducted by NEFSC would not be significantly different from the research analyzed herein or result in a change in the take request. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 The gear types used by NEFSC to conduct fisheries research include: Pelagic trawl gear used at various levels in the water column, pelagic and demersal longlines, bottom-contact trawls, anchored sinking gillnets, and other gear such as dredges and traps. The use of pelagic and bottom trawl nets, gillnets, fyke nets, and longline/ hook and line gear have to potential to result in interaction (e.g., entanglement, hooking) with marine mammals. These gears and the methods of fishing are identical or similar to those described in the initial NEFSC proposed rule (80 FR 35942, July 9, 2015). Complete gear descriptions can also be found in Appendix B of the NMFS 2020 Draft Supplemental Programmatic Environmental Assessment available at https://www.fisheries.noaa.gov/action/ draft-supplemental-programmaticenvironmental-assessment-nefscresearch-now-available. Please refer to those documents for more information related to fishing gear. Additionally, a small set of research activities along the Penobscot River estuary in Maine have the potential to behaviorally disturb marine mammals due to the physical presence of researchers near haulout areas. Most of the vessel-based surveys use active acoustic devices. The NEFSC may conduct surveys aboard research vessels (R/V), including the NOAA Ship R/V Henry B. Bigelow, R/V Gordon Gunter, R/V Pisces, R/V Nauvoo, R/V Harvey, R/ V Chemist, R/V Resolute, R/V Hassler, R/V C.E. Stillwell, and R/V Gloria Michelle; aboard R/V and fishing vessels (F/V) owned and operated by cooperating agencies and institutions including the F/V Robert Michael, F/V Darana R, R/V Hugh R. Sharp, and F/ V Eagle Eye II; or aboard charter vessels. A complete description of the longterm research surveys conducted by NEFSC can be found in section 1.4 of the LOA application. A complete description of the short-term cooperative research projects can be found in section 1.5 of the LOA application. Below we provide a summary table with information relevant to this proposed rule (Table 1). E:\FR\FM\04JNP2.SGM 04JNP2 VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2 NEFSC Standard Bottom Trawl Surveys (BTS). NEFSC Bottom Trawl Survey Gear Trials. NEFOP Observer Bottom Trawl Training Trips. NEFSC Northern Shrimp Survey. NEAMAP Near Shore Trawl Program— Southern Segment. Massachusetts Division of Marine Fisheries Bottom Trawl Surveys. NEAMAP Near Shore Trawl Program— Northern Segment. Living Marine Resources Survey. Fish Collection for Laboratory Experiments. Habitat Mapping Survey. Benthic Habitat Survey. Project name This project monitors abundance and distribution of mature and juvenile fish and invertebrates. Testing and efficiency evaluation of the standardized 4-seam, 3-bridle bottom trawl (doors, sweeps, protocols). The objective of this project is to determine the distribution and abundance of northern shrimp and collect related data. This project provides data collection and analysis in support of single and multispecies stock assessments Gulf of Maine. It includes the Maine/New Hampshire inshore trawl program, conducted by Maine Department of Marine Resources (MDMR) in the northern segment. This project provides data collection and analysis in support of single and multispecies stock assessments in the MidAtlantic. It includes the inshore trawl program NEAMAP Mid-Atlantic to Southern New England survey, conducted by Virginia Institute of Marine Science, College of William and Mary (VIMS) in the southern segment. Certification training for new NEFOP Observers. The objective of this project is to track mature animals and determine juvenile abundance. Assess habitat distribution and condition, including disturbance by commercial fishing and changes as the benthic ecosystem recovers from chronic fishing impacts. Also serves to collect data on seasonal migration of benthic species, collect bottom data for mapping, and provide indications of climate change through species shifts. Trawling/hook and line collection operations undertake to capture high quality fish for laboratory experiments. Map shallow reef habitats of fisheries resource species, including warm season habitats of black sea bass, and locate sensitive habitats (e.g., shallow temperate coral habitats) for habitat conservation. Determine the distribution, abundance, and recruitment patterns for multiple species. Survey description Specific gear Bottom Trawl ............................. Bottom Trawl ............................. Bottom Trawl ............................. Bottom Trawl ............................. Bottom Trawl ............................. Bottom Trawl ............................. Bottom Trawl ............................. Bottom Trawl ............................. Bottom Trawl ............................. Bottom Trawl ............................. 4-seam, 3-bridle bottom trawl, twin trawls. 4 seam modified commercial shrimp trawl, positional sensors, mini-log, CTD. 4-seam, 3-bridle bottom trawl. Contracted vessels’ trawl gear. 4-seam, 3-bridle net bottom trawl cookie sweep. Modified GoM shrimp otter trawl. 4-seam, 3 bridle bottom trawl, beam trawl, CTD, Van Veen, Plankton trap, dredge, camera, sonar. 4-seam, 3 bridle bottom trawl, beam trawl, CTD, Van Veen, sonar. Otter trawl ................. Net and twine shrimp trawl, fishing poles. Conductivity, Temperature, and Depth (CTD), Van Veen, Plankton trap, Beam Trawl, Dredge, Camera, Sonar. Long-Term Research Bottom Trawl ............................. Gear Cape Hatteras to Western Scotian Shelf. Cape Hatteras to Western Scotian Shelf. GOM ......................... Mid-Atlantic Bight (MAB) and GB. Montauk, NY to Cape Hatteras, NC from 20 to 90 ft depth. U.S.-Canada to NH– MA border from shore to 300 ft depth. Territorial waters from RI to NH borders. Cape Hatteras to NJ Ocean Shelf off MD .. New York Bight, Sandy Hook Bay. Georges Bank (GB) .. Area of operation TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS Fall ............................ Spring and Fall ......... Summer .................... April–November (as needed), day trips. Spring and Fall ......... Spring and Fall ......... Spring and Fall ......... Spring ....................... Summer .................... April–November ........ Summer or Fall ......... Season 14–20 ....................... 120 ........................... 22 ............................. 18 ............................. 30–50 ....................... 30–50 ....................... 60–72 ....................... 11 ............................. 11 ............................. 10 ............................. 20 ............................. Annual days at sea (DAS) Y Y Y Y Y Y Y Y Y Y Y Potential for take (Y/N) Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules 30085 VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 Apex Predators Bottom Longline Coastal Shark Survey. NEFOP Observer MidWater Trawl Training Trip. Apex Predators Pelagic Longline Shark Survey. Penobscot Estuarine Fish Community and Ecosystem Survey. Northeast Integrated Pelagic Survey. Deepwater Biodiversity. Atlantic Salmon Trawl Survey. Atlantic Herring Survey. Project name The objectives of this survey are to: (1) Monitor the species composition, distribution, and abundance of pelagic sharks in the U.S. Atlantic from Maryland to Canada; (2) tag sharks for migration and age validation studies; (3) collect morphological data and biological samples for age and growth, feeding ecology, and reproductive studies; and (4) provide time-series of abundance from this survey for use in Atlantic pelagic shark assessments. The objectives of this survey are to: (1) Monitor the species composition, distribution, and abundance of sharks in coastal Atlantic waters from Florida to Delaware; (2) tag sharks for migration and age validation studies; (3) collect morphometric data and biological samples for age and growth, feeding ecology, and reproductive studies; and (4) provide time-series of abundance from this survey for use in Atlantic coastal shark assessments. This project collects fish, cephalopod and crustacean specimens from 500 to 2,000 m for tissue samples, specimen photos, and documentation of systematic characterization. The objective of this project is fish and invertebrate sampling for biometric and population analysis of estuarine and coastal species. The objective of this project is to assess the pelagic components of the ecosystem including water currents, water properties, phytoplankton, microzooplankton, mesozooplankton, pelagic fish and invertebrates, sea turtles, marine mammals, and sea birds. This program provides certification training for NEFOP Observers. This operation collects fisheries-independent herring spawning biomass data and also includes survey equipment calibration and performance tests. This is a targeted research effort to evaluate the marine ecology of Atlantic salmon. Survey description Longline .................................... Longline .................................... Pelagic Trawl ............................ Florida style bottom longline. Yankee and current commercial pelagic longline gear. Configured according to NMFS HMS Regulations. Various commercial nets. Mid-water trawls, bong nets, CTD, Acoustic Doppler Profiler (ADCP), acoustics. Pelagic Trawl ............................ Pelagic Trawl ............................ Pelagic Trawl ............................ Pelagic Trawl ............................ 4-seam, 3-bridle net bottom trawl, midwater rope trawl, acoustics. Modified mid-water trawl that fishes at the surface via pair trawling. Deep-Sea acoustic/ optic/oceanographic/eDNA system, trawl camera system. Mamou shrimp trawl modified to fish at surface. Specific gear Pelagic Trawl ............................ Gear RI to FL within 40 fathoms. MD to Canada .......... MAB and GB ............ Cape Hatteras to Western Scotian Shelf. Penobscot Estuary and Bay, ME. Western North Atlantic. Inshore and offshore GOM. GOM and Northern GB. Area of operation Season Spring ....................... Spring ....................... April–November as needed (day trips). Summer and Fall ...... Spring Summer and Fall. Summer or Fall ......... Spring ....................... Fall ............................ TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS—Continued 47 ............................. 30 ............................. 5 ............................... 80 ............................. 12 ............................. 16 ............................. 21 ............................. 34 ............................. Annual days at sea (DAS) Y Y Y Y Y Y Y Y Potential for take (Y/N) 30086 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules E:\FR\FM\04JNP2.SGM 04JNP2 VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2 Surfclam and Ocean Quahog Dredge Survey. NEFOP Observer Scallop Dredge Training Trips. Annual Standardized Sea Scallop Survey. NEFOP Observer Bottom Longline Training Trips. Annual Assessments of Sea Scallop Abundance and Distribution. Cooperative Research Gulf of Maine Longline Project. Cooperative Atlantic States Shark Pupping and Nursery (COASTSPAN) Longline and Gillnet Surveys. Apex Predators Pelagic Nursery Grounds Study. The objective of this project is to determine distribution and abundance of sea scallops and collect related data for Ecosystem Management from concurrent stereo-optic images. It is conducted by the NEFSC. The objective of this project is to determine distribution and abundance of Surfclam/ ocean quahog and collect related data. These Atlantic Sea Scallop Research SetAside (RSA) rotational area surveys endeavor to monitor scallop biomass and derive estimates of Total Allowable Catch (TAC) for annual scallop catch specifications. Additionally, the surveys monitor recruitment, growth, and other biological parameters such as meat weight, shell height and gonadal somatic indices. This program provides certification training for NEFOP observers. This project uses opportunistic sampling on board a commercial swordfish longline vessel to: (1) Monitor the species composition and distribution of juvenile pelagic sharks on the Grand Banks; (2) tag sharks for migration and age validation studies; and (3) collect morphometric data and biological samples for age and growth, feeding ecology, and reproductive studies. Data from this survey helps determine the location of pelagic shark nurseries for use in updating essential fish habitat designations. This project determines the location of shark nurseries, species composition, relative abundance, distribution, and migration patterns. It is used to identify and refine essential fish habitat and provides standardized indices of abundance by species used in multiple species specific stock assessments. NEFSC conducts surveys in Delaware, New Jersey, and Rhode Island estuarine and coastal waters. Other areas are surveyed by cooperating institutions and agencies. In the NE Large Marine Ecosystem (LME), the Virginia Institute of Marine Science (VIMS) is a cooperating partner. South of Cape Hatteras the South Carolina Department of Natural Resources (SCDNR), University of North Florida (UNF), and Florida Atlantic University (FAU) are partners. The objective of this project is to conduct commercial cooperative bottom longline sets to characterize demersal species of the Western Gulf of Maine traditionally difficult to capture with traditional or research trawl gear due to the bottom topography. This program provides certification training for NEFOP observers. Dredge ...................................... Dredge ...................................... Dredge ...................................... Dredge ...................................... Longline .................................... COOP Western-Central Gulf of Maine hard bottom longline survey. Longline and Gillnet .................. Longline .................................... Hydraulic-jet dredge New Bedford dredge, HabCam V4. Turtle deflector dredge. Scallop dredges, drop cameras, Other Habitat Camera (HabCam) Versions. Commercial bottom longline gear. Longline .................... Bottom Longline Gear, Anchored Sinking Gillnet. Standard commercial pelagic longline gear. Configured according to NMFS Highly Migratory Species (HMS) Regulations. Southern VA to GB .. NC to GB .................. MAB and GB ............ GPM, Georges Bank, Mid-Atlantic. MAB and GB ............ Western GOM focused on sea mounts. FL to RI .................... GB to Grand Banks off Newfoundland, Canada. Summer .................... Summer .................... April–November as needed (day trips). Dredge surveys Apr– Sept, Camera surveys June–Sept. April–November as needed (day trips). Spring and Fall ......... Summer .................... Fall ............................ 15 ............................. 36 ............................. 6 ............................... 50–100 ..................... 5 ............................... 60 stations/year eastern Maine, 90 stations/year westerncentral GOM. 25 or 40 .................... 21–55 ....................... N N N N Y Y Y Y Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules 30087 VerDate Sep<11>2014 17:49 Jun 03, 2021 The objective of this program is to determine the species diversity, community composition, distribution and extent of deep sea coral and sponge habitats. Deep-sea Coral Survey. Jkt 253001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2 DelMarVa Reefs Survey. Trawling to Support Finfish Aquaculture Research. DelMarVa Habitat Characterization. Rotary Screw Trap (RSTs) Survey. AUV Pilot Studies ...... Ocean Acidification .... Marine Estuaries Diadromous Survey. NEFOP Observer Gillnet Training Trips. Nutrients and Frontal Boundaries. Gulf of Maine Ocean Observing System Mooring Cruise. Hydroacoustics Surveys. The objective of this project is to characterize nutrient patterns associated with distinct water masses and their boundaries off of coastal New Jersey and Long Island in association with biological sampling. The objective of this project is to develop baseline pH measurements in the Hudson River water. This program provides gear and platform testing. This project is designed to collect abundance estimates of Migrating Atlantic salmon smolts and other anadromous species. The objective of this project is to collect broodstock for laboratory spawning and rearing and experimental studies. The objective of this project is to characterize and determine key hard bottom habitats in coastal ocean off the DelMarVa Peninsula as an adjunct to the DelMarVa Reef Survey. The objective of this project is determination of extent and distribution of rock outcrops and coral habitats and their use by black sea bass and other reef fishes. This project consists of mobile transects conducted throughout the estuary and bay to study fish biomass and distribution. This project is a fish community survey at fixed locations. This program provides certification training for NEFOP Observers. The objective of this project is to collect growth data on hard clams, oysters and bay scallops. This project services oceanographic moorings operated by the University of Maine. The objective of this project is to monitor tagged animals entering the Penobscot Bay System and exiting the system into the Gulf of Maine. Coastal Maine Telemetry Network. Diving Operations ...... Survey description Project name Other ......................................... Other ......................................... Other ......................................... Other ......................................... Other ......................................... Other ......................................... Other ......................................... Other ......................................... Other ......................................... Acoustic only ............................. Other ......................................... Other ......................................... Other ......................................... Other ......................................... Gear Combination bottom trawl, shrimp trawl, gillnet. ADCP, CTD, YSI, Plankton net, video sled, Ponar grab, Kemmerer bottle, sonar. HABCAM, CTD ......... RST .......................... CTD, YSI, multinutrient analyzer, Kemmerer bottle. AUV .......................... ADP, CTD, Hydroacoustics. 1 m and 2 m fyke nets. gill net gear ............... Split-beam and DIDSON. ADCP on vessel and moorings. Fixed position acoustic telemetry array receivers on moorings spaced 250– 400 m apart. Remotely Operated Vehicles (ROVs), CTD, towed cameras, ADCP, acoustics. Wire mesh cages, lantern nets. Specific gear Coastal waters off DE, MD and VA. Coastal waters off DE, MD and VA. Long Island Sound ... Estuaries on coastal Maine rivers. MA state waters, GB Hudson River Coastal waters. MAB .......................... Penobscot Bay and estuary. MAB and GB ............ Penobscot Bay and estuary. GOM and Northern GB. Continental shelf margin, slope, and submarine canyons and deep basins: GOM to Virginia. Long Island Sound ... Penobscot River estuary and bay, GOM. Area of operation Season August ...................... August ...................... Summer .................... April 15–June 15 ...... June .......................... Spring ....................... Feb., May–June, Aug, and Nov. April–November as needed (day trips). April–November ........ Spring ....................... Summer .................... Year round ................ Summer .................... Year round in GOM and Apr.–Nov. in nearshore areas. TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS—Continued 5 ............................... 5 ............................... 30 ............................. 60 ............................. 5 ............................... 10 ............................. 10 ............................. 10 ............................. 100 ........................... 25 ............................. 12 ............................. 20 ............................. 16 ............................. 10 ............................. Annual days at sea (DAS) N N Y N N N N N N Y N N Y Y Potential for take (Y/N) 30088 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 Gear and net conservation Cooperative work. Varied gear and efficiency testing of fisheries applications. Cooperative Squid Trawls and studies for squid catchability and selectivity. Commercial scallop dredge finfish and turtle excluder research. Scallop dredge finfish and turtle excluder research. Commercial hydrodynamic turtle deflector dredge testing. Winter Flounder tagging projects. Winter flounder migration patterns. Spiny dogfish tagging projects. Spiny dogfish tagging north and south of Cape Cod, and Cusk & NE multi-species tagging. Conservation Engineering Projects. Conservation Engineering Projects. Conservation Engineering Projects. Conservation Engineering Projects. Tagging Projects ........ Tagging Projects ........ Cooperative Industry based surveys to enhance data for flatfish utilizing cookie sweep gear on commercial platforms. Cooperative Industry based catchability studies for Monkfish, Longfin squid, other. Twin trawl and paired vessel comparisons of Standardized Bigelow Trawl to test rockhopper and cookie sweeps and varying trawl doors performance on commercial platforms. Pot and trap catchability studies for Scup and Black Sea bass. The James J. Howard Sandy Hook Marine Laboratory occasionally supports shortterm research projects requiring small samples of fish for various purposes or to test alterations of survey gear. These small and sometimes opportunistic sampling efforts have used a variety of gear types other than those listed under Status Quo projects. The gears and effort levels listed here are representative of potential requests for future research support. This program consists of opportunistic plankton and hydrographic sampling during ship transit. Monkfish Research Set-Aside (RSA) surveys endeavor to monitor Monkfish biomass and derive estimates of Total Allowable Catch (TAC) for annual Monkfish catch specifications. Additionally, the surveys monitor recruitment, growth, and other biological parameters. Conservation Engineering Projects. Survey Projects .......... Trawl Comparison Research. Survey Projects .......... Survey Projects .......... Monkfish RSA ............ Opportunistic Hydrographic Sampling. Miscellaneous Fish Collections and Experimental Survey Gear Trials. Plankton net, expendable bathythermograph. Commercial gillnets of various sizes, short durations for sets. Bottom trawl, lobster and fish pots, beam trawl, seine net, trammel nets. E:\FR\FM\04JNP2.SGM 04JNP2 Hook & Line; Gillnet .................. Trawl ......................................... Dredge ...................................... Hook & Line and Gillnet. Hydrodynamic dredge. Bottom Trawl & Otter trawl. Bottom Trawl & Beam trawl. Dredge ...................... Trawl ......................................... Dredge ...................................... Bottom Trawl ............ Bottom Trawl ............ Pots and Traps ......... Trawl nets with two types of sweeps or doors. Pelagic Trawl ............ Bottom Trawl ............ Trawl ......................................... Trawl ......................................... Pot survey ................................. Twin Bottom Trawl .................... Trawl ......................................... Trawl ......................................... Short-Term Cooperative Projects Other ......................................... Other ......................................... Other ......................................... Coastal waters in GOM New Hampshire to Stonington/ Mt. Desert Island, ME. GOM and GB waters adjacent to Cape Cod, MA. GB, SNE, MAB ......... GOM, GB, SNE, MAB. GOM, GB, SNE, MAB. GB, SNE, MAB ......... SNE, Rhode Island Bight, Nantucket Sound, MAB waters from shore to shelf edge. GOM, GB, SNE, MAB. GOM, GB, SNE, MAB. GB, SNE, MAB ......... GOM, GB, SNE, MAB. Mid-Atlantic and Georges Bank. Southeast LME depths <300 m. New York Bight estuary waters. Spring, Summer and Fall. April–December (end of fishing year). Spring and Summer Spring, Summer and Fall. Spring, Summer and Fall. April–December (end of fishing year). Spring, Summer and Fall. Spring and fall for black sea bass. Year round for scup. Summer and Fall Summer and Fall. Summer and Fall ...... Summer and Fall ...... April–December (end of fishing year). Early Summer ........... Spring and Fall ......... Long line: 5 sets/trip, 15 total. Gillnet: 5 sets/trip, 15 total. up to 650 trawls/year > 1,700 dredge tows/ year for all dredge conservation projects. ................................... ................................... ∼500 tows per year total for all bottom trawl conservation projects. ................................... 2,650 pot sets/year ... 100 DAS ................... 30 tows/year ............. 550 tows/year ........... 100–200 sets/year. Sets left for 2–3 days. not stated ................. not stated ................. Y Y N N Y Y Y Y Y Y Y Y N Y Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules 30089 VerDate Sep<11>2014 17:49 Jun 03, 2021 Continuous Plankton Recorder (CPR) Transect Surveys: GOM. Rod and Reel Tagging of Atlantic Salmon. Research to develop ropeless gear/devices to mitigate/eliminate interactions with protected species (whales and turtles) by utilizing commercial lobster gear. Use of rod and reel to capture, tag, release Atlantic salmon in international and US waters. A towed continuous plankton recording device is deployed from vessels of opportunity in the Gulf of Maine, monthly. Monkfish tagging projects ........................... Tagging Projects ........ Ropeless Lobster Trap Research. Survey description Project name Towed array .............................. Rod and Reel ............................ Lobster Pots/Traps ................... Gillnet ........................................ Gear GOM, SNE, MAB ..... Area of operation CPR .......................... ME to Nova Scotia ... Acoustic/mechanical GOM, SNE, MAB releases for (Inshore and Offropeless lobster shore). gear and float lines. Acoustic tags ............ ME, Greenland ......... Gillnet ....................... Specific gear Season Summer and Fall ...... Summer and Fall ...... Summer and Fall ...... September–December. TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS—Continued 24 DAS ..................... 18–20 DAS, 10 shortduration sets/day, 180–200 sets total. 50–100 DAS, 500 sets, singles and up to 40 pots per set. 200–500 tags applied total. Annual days at sea (DAS) N N N Y Potential for take (Y/N) 30090 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules Jkt 253001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules Description of NEFSC’s Active Acoustic Devices NEFSC’s fisheries surveys may use a wide range of active acoustic devices for remotely sensing bathymetric, oceanographic, and biological features of the environment. Most of these sources involve relatively high frequency, directional, and brief repeated signals tuned to provide sufficient focus and resolution on specific objects. The NEFSC may also use passive listening sensors (i.e., remotely and passively detecting sound rather than producing it), which do not have the potential to impact marine mammals. NEFSC active acoustic sources include various echosounders (e.g., multibeam systems), scientific sonar systems, positional sonars (e.g., net sounders for determining trawl position), and environmental sensors (e.g., acoustic Doppler current profilers). The sources are characterized as nonimpulsive, intermittent sources. Mid- and high-frequency underwater acoustic sources typically used for scientific purposes operate by creating an oscillatory overpressure through rapid vibration of a surface, using either electromagnetic forces or the piezoelectric effect of some materials. A vibratory source based on the piezoelectric effect is commonly referred to as a transducer. Transducers are usually designed to excite an acoustic wave of a specific frequency, often in a highly directive beam, with the directional capability increasing with operating frequency. The main parameter characterizing directivity is the beam width, defined as the angle subtended by diametrically opposite ‘‘half power’’ (¥3 dB) points of the main lobe. For different transducers at a single operating frequency the beam width can vary from 180° (almost omnidirectional) to only a few degrees. Transducers are usually produced with either circular or rectangular active surfaces. For circular transducers, the beam width in the horizontal plane (assuming a downward pointing main beam) is equal in all directions, whereas rectangular transducers produce more complex beam patterns with variable beam width in the horizontal plane. The types of active sources employed in fisheries acoustic research and monitoring may be considered in two broad categories here, based largely on their respective operating frequency (e.g., within or outside the known audible range of marine species) and other output characteristics (e.g., signal duration, directivity). As described below, these operating characteristics VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 result in differing potential for acoustic impacts on marine mammals. The types of active sources employed in fisheries acoustic research and monitoring, based largely on their relatively high operating frequencies and other output characteristics (e.g., signal duration, directivity), should be considered to have very low potential to cause effects to marine mammals that would rise to the level of a ‘‘take,’’ as defined by the MMPA. Acoustic sources operating at high output frequencies (≤180 kHz) that are outside the known functional hearing capability of any marine mammal are unlikely to be detected by marine mammals. Although it is possible that these systems may produce subharmonics at lower frequencies, this component of acoustic output would also be at significantly lower SPLs. While the production of subharmonics can occur during actual operations, the phenomenon may be the result of issues with the system or its installation on a vessel rather than an issue that is inherent to the output of the system. Many of these sources also generally have short duration signals and highly directional beam patterns, meaning that any individual marine mammal would be unlikely to even receive a signal that would likely be inaudible. Acoustic sources present on most NEFSC fishery research vessels include a variety of single, dual, and multi-beam echosounders (many with a variety of modes), sources used to determine the orientation of trawl nets, and several current profilers with lower output frequencies that certain marine mammals may detect (e.g., 10–180 kHz). However, while likely potentially audible to certain species, these sources also have generally short ping durations and are typically focused (highly directional) to serve their intended purpose of mapping specific objects, depths, or environmental features. These characteristics reduce the likelihood of an animal receiving or perceiving the signal. A number of these sources, particularly those with relatively lower output frequencies coupled with higher output levels can be operated in different output modes (e.g., energy can be distributed among multiple output beams) that may lessen the likelihood of perception by and potential impact on marine mammals. The acoustic system used during a particular NEFSC survey is optimized for surveying under specific environmental conditions (e.g., depth and bottom type). Lower frequencies of sound travel further in the water (i.e., good range) but provide lower resolution (i.e., are less precise). Pulse PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 30091 width and power may also be adjusted in the field to accommodate a variety of environmental conditions. Signals with a relatively long pulse width travel further and are received more clearly by the transducer (i.e., good signal-to-noise ratio) but have a lower range resolution. Shorter pulses provide higher range resolution and can detect smaller and more closely spaced objects in the water. Similarly, higher power settings may decrease the utility of collected data. Power level is also adjusted according to bottom type, as some bottom types have a stronger return and require less power to produce data of sufficient quality. Power is typically set to the lowest level possible in order to receive a clear return with the best data. Survey vessels may be equipped with multiple acoustic systems; each system has different advantages that may be utilized depending on the specific survey area or purpose. In addition, many systems may be operated at one of two frequencies or at a range of frequencies. We summarize characteristics of these sources below and in Table 2. 1. Multi-Frequency Narrow Beam Scientific Echosounders—Echosounders and sonars work by transmitting acoustic pulses into the water that travel through the water column, reflect off the seafloor, and return to the receiver. Water depth is measured by multiplying the time elapsed by the speed of sound in water (assuming accurate sound speed measurement for the entire signal path), while the returning signal itself carries information allowing ‘‘visualization’’ of the seafloor. Multifrequency split-beam sensors are deployed from NEFSC survey vessels to acoustically map the distributions and estimate the abundances and biomasses of many types of fish; characterize their biotic and abiotic environments; investigate ecological linkages; and gather information about their schooling behavior, migration patterns, and avoidance reactions to the survey vessel. The use of multiple frequencies allows coverage of a broad range of marine acoustic survey activity, ranging from studies of small plankton to large fish schools in a variety of environments from shallow coastal waters to deep ocean basins. Simultaneous use of several discrete echosounder frequencies facilitates accurate estimates of the size of individual fish, and can also be used for species identification based on differences in frequencydependent acoustic backscattering between species. The NEFSC operates Simrad EK500 and EK60 systems, which E:\FR\FM\04JNP2.SGM 04JNP2 30092 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules transmits and receives at six frequencies ranging from 18 to 333 kHz. 2. Multibeam Echosounder and Sonar—Multibeam echosounders and sonars operate similarly to the devices described above. However, the use of multiple acoustic ‘‘beams’’ allows coverage of a greater area compared to single beam sonar. The sensor arrays for multibeam echosounders and sonars are usually mounted on the keel of the vessel and have the ability to look horizontally in the water column as well as straight down. Multibeam echosounders and sonars are used for mapping seafloor bathymetry, estimating fish biomass, characterizing fish schools, and studying fish behavior. The NEFSC operates the Simrad ME70 system, which is mounted to the hull of the research vessels and emits frequencies in the 70–120 kHz range. 3. Single-Frequency Omnidirectional Sonar—Low-frequency, high-resolution, long range fishery sonars operate with user selectable frequencies between 20– 30 kHz, which provide longer range and prevent interference from other vessels. These sources provide omnidirectional imaging around the source with three different vertical beamwidths available (single or dual vertical view and 4–5° variable for tilt angles from 0 to 45° from horizontal). At the 30-kHz operating frequency, the vertical beamwidth is less than 7° and can be electronically tilted from +10 to ¥80°, which results in differential transmitting beam patterns. The cylindrical multi-element transducer allows the omnidirectional sonar beam to be electronically tilted down to –60°, allowing automatic tracking of schools of fish within the entire water volume around the vessel. The NEFSC operates the Simrad SX90 system. 4. Acoustic Doppler Current Profiler (ADCP)—An ADCP is a type of sonar used for measuring water current velocities simultaneously at a range of depths. Whereas current depth profile measurements in the past required the use of long strings of current meters, the ADCP enables measurements of current velocities across an entire water column. The ADCP measures water currents with sound, using the Doppler effect. A sound wave has a higher frequency when it moves towards the sensor (blue shift) than when it moves away (red shift). The ADCP works by transmitting ‘‘pings’’ of sound at a constant frequency into the water. As the sound waves travel, they ricochet off particles suspended in the moving water, and reflect back to the instrument. Due to the Doppler effect, sound waves bounced back from a particle moving away from the profiler have a slightly lowered frequency when they return. Particles moving toward the instrument send back higher frequency waves. The difference in frequency between the waves the profiler sends out and the waves it receives is called the Doppler shift. The instrument uses this shift to calculate how fast the particle and the water around it are moving. Sound waves that hit particles far from the profiler take longer to come back than waves that strike close by. By measuring the time it takes for the waves to return to the sensor, and the Doppler shift, the profiler can measure current speed at many different depths with each series of pings. An ADCP anchored to the seafloor can measure current speed not just at the bottom, but at equal intervals to the surface. An ADCP instrument may be anchored to the seafloor or can be mounted to a mooring or to the bottom of a boat. ADCPs that are moored need an anchor to keep them on the bottom, batteries, and a data logger. 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. 5. Net Monitoring Systems—During trawling operations, a range of sensors may be used to assist with controlling and monitoring gear. Net sounders give information about the concentration of fish around the opening to the trawl, as well as the clearances around the opening and the bottom of the trawl; catch sensors give information about the rate at which the codend is filling; symmetry sensors give information about the optimal geometry of the trawls; and tension sensors give information about how much tension is in the warps and sweeps. The NEFSC uses the NetMind System which measures door spread and monitors the door height off of the bottom and operates at 30 and 200 kHz. The NEFSC also uses a Simrad ITI Catch Monitoring System, which allows monitoring of the exact position of the gear and of what is happening in and around the trawl. TABLE 2—OPERATING CHARACTERISTICS OF NEFSC ACTIVE ACOUSTIC SOURCES Active acoustic system Operating frequencies Maximum source level Single ping duration (ms) and repetition rate (Hz) Nominal beamwidth (degrees) Orientation/directionality Simrad EK500 and EK60 narrow beam echosounders. Simrad ME70 multibeam echosounder. Simrad SX90 narrow beam sonar. 18, 38, 70, 120, 200, 333 kHz; primary frequencies italicized. 70–120 kHz ......................... 224 dB ..... Variable; most common set- Downward looking ............... tings are 1 ms and 0.5 Hz. 7° at 38 kHz, 11° at 18 kHz. 205 dB ..... 0.06–5 ms; 1–4 Hz .............. Primarily downward looking 140°. 20–30 kHz ........................... 219 dB ..... Variable ............................... Omnidirectional ................... Teledyne RD Instruments ADCP, Ocean Surveyor. Simrad ITI Catch Monitoring System. Raymarine SS260 transducer for DSM300 (surrogate for FCV–292). Simrad EQ50 ....................... 75 kHz ................................. 224 dB ..... 0.2 Hz .................................. Downward looking ............... 4–5° (variable for tilt angles from 0–45° from horizontal). 30°. 27–33 kHz ........................... 214 dB ..... 0.05–0.5 Hz ......................... Downward looking ............... 40°. 50, 200 kHz ......................... 217 dB ..... Unknown ............................. Downward looking ............... 19° at 50 kHz, 6° at 200 kHz. 50, 200 kHz ......................... 210 dB ..... Variable ............................... Downward looking ............... NetMind ................................ 30, 200 kHz ......................... 190 dB ..... Unknown ............................. Downward looking ............... 16° at 50 kHz, 7° at 200 kHz. 50°. Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Proposed Mitigation and Proposed Monitoring and Reporting). PO 00000 Description of Marine Mammals in the Area of Specified Activities Sections 3 and 4 of NEFSC’s LOA application summarize available Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2 30093 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Species and stock information is also provided in NMFS’ 2015 proposed rule associated with the current LOA (80 FR 39542; July 9, 2015), NMFS’s 2016 Final Programmatic EA (available at https:// www.fisheries.noaa.gov/action/ incidental-take-authorization-noaafisheries-nefsc-fisheries-and-ecosystemresearch) and, where updates are necessary, NMFS 2019 draft supplemental programmatic EA (available at https:// www.fisheries.noaa.gov/action/ incidental-take-authorization-noaanortheast-fisheries-science-centerfisheries-and). Additional information regarding population trends and threats may be found in NMFS’s Stock Assessment Reports (SARs; https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marine- mammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website (https:// www.fisheries.noaa.gov/find-species). Table 3 lists all species or stocks for which take is expected and proposed to be authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS’s SARs). PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’s U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al., 2020). All values presented in Table 3 are the most recent available at the time of publication and are available in the draft 2020 SARs (available online at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ draft-marine-mammal-stockassessment-reports). TABLE 3—MARINE MAMMAL PRESENT WITHIN THE NORTHEAST U.S. CONTINENTAL SHELF LARGE MARINE ECOSYSTEM Common name Scientific name Stock I ESA/ MMPA status; strategic (Y/N) 1 I Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR 3 I I Total annual M/SI 3 Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Balaenidae (right whales): North Atlantic right whale ...... Family Balaenopteridae (rorquals): Blue whale 5 .......................... Minke whale .......................... Sei whale .............................. Fin whale ............................... Humpback whale .................. Eubalaena glacialis ........... Western Atlantic ................ E/D; Y 368 (0, 356, 2020) 4 ..................... 0.8 5 18.6 Balaenoptera musculus .... Balaenoptera acutorostrata acutorostrata. B. borealis borealis ........... B. physalus physalus ........ Megaptera novaeangliae novaeangliae. Western North Atlantic ...... Canadian East Coast ........ E/D; Y –; N Unk (n/a, 402, 1980–2008) .......... 21,968 (0.31, 17,002, 2016) ........ 0.8 170 7 8 10.6 Nova Scotia ....................... Western North Atlantic ...... Gulf of Maine .................... E/D; Y E/D; Y E/D; Y 6,292 (1.02, 3,098, 2016) ............ 6,802 (0.24, 5,573, 2016) ............ 1,393 (0.15, 1,375, 2016) ............ 6.2 11 22 10 2.35 0 9 1.2 11 58 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Physeteridae: Sperm whale ......................... Family Kogiidae: Pygmy sperm whale ............. Dwarf sperm whale ............... Family Ziphiidae (beaked whales): Northern bottlenose whale .... Blainville’s beaked whale ...... Sowerby’s beaked whale ...... Gervais’ beaked whale ......... True’s beaked whale ............. Cuvier’s beaked whale .......... Family Delphinidae: Short-beaked common dolphin. Pygmy killer whale ................ Short-finned pilot whale ........ Long-finned pilot whale ......... Risso’s dolphin ...................... Fraser’s dolphin .................... Atlantic white-sided dolphin .. White-beaked dolphin ........... Killer whale ............................ Melon-headed whale ............. Pantropical spotted dolphin .. Clymene dolphin ................... Striped dolphin ...................... Atlantic spotted dolphin ......... VerDate Sep<11>2014 17:49 Jun 03, 2021 Physeter macrocephalus .. Western North Atlantic ...... E/D; Y 4,349 (0.28, 3,451, 2016) ............ 3.9 0 Kogia breviceps ................ K. sima .............................. Western North Atlantic ...... Western North Atlantic ...... –; N –; N 7,750 (0.38, 5,689, 2016) ............ 7,750 (0.38, 5,689, 2016) ............ 46 46 0 0 Hyperoodon ampullatus .... Mesplodon densirostris ..... M. bidens .......................... M. europaeus. M. mirus. Ziphius cavirostris ............. Western North Atlantic ...... Western North Atlantic ...... Western North Atlantic ...... –; N –; N –; N Unk ............................................... 10,107 (0.27, 8,085, 2016) 12 ...... 10,107 (0.27, 8,085, 2016) 12 ...... Unk 81 81 0 0.2 0 Western North Atlantic ...... –; N 5,744 (0.36, 4,282, 2016) ............ 43 0.2 Delphinus delphis delphis Western North Atlantic ...... –; N 172,825 (0.55, 112,531, 2007) .... 1,125 8 289 Feresa attenuata ............... Globicephala macrorhynchus. G. melas ............................ Grampus griseus ............... Lagenodelphis hosei ......... Lagenorhynchus acutus .... L. albirostris ....................... Orcinus orca ...................... Peponocephala electra ..... Stenella attenuata ............. S. clymene ........................ S. coeruleoalba ................. S. frontalis ......................... Western North Atlantic ...... Western North Atlantic ...... –; N –; N Unk ............................................... 28,924 (0.24, 23,637, 2016) ........ Unk 236 Unk 160 Western Western Western Western Western Western Western Western Western Western Western –; –; –; –; –; –; –; –; –; –; –; 39,215 (0.30, 30,627, 2016) ........ 35,493 (0.19, 30,289, 2016) ........ Unk ............................................... 93,233 (0.71, 54,443, 2016) ........ 536,016 (0.31, 415,344, 2016) .... Unk ............................................... Unk ............................................... 6,593 (0.52, 4,367, 2016) ............ 4,237 (1.03, 2,071, 2016 ............. 67,036 (0.29, 52,939, 2016) ........ 39,921 (0.27, 32,032, 2016) ........ 306 303 Unk 544 4,153 Unk Unk 44 21 529 320 21 54.3 0 26 0 0 0 0 0 0 0 Jkt 253001 PO 00000 Frm 00015 North North North North North North North North North North North Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Fmt 4701 ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... Sfmt 4702 N N N N N N N N N N N E:\FR\FM\04JNP2.SGM 04JNP2 30094 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules TABLE 3—MARINE MAMMAL PRESENT WITHIN THE NORTHEAST U.S. CONTINENTAL SHELF LARGE MARINE ECOSYSTEM— Continued Common name Spinner dolphin ..................... Rough-toothed dolphin .......... Bottlenose dolphin ................ Family Phocoenidae (porpoises): Harbor porpoise .................... ESA/ MMPA status; strategic (Y/N) 1 Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR 3 Total annual M/SI 3 Scientific name Stock S. longirostris .................... Steno bredanensis ............ Tursiops truncatus truncatus. Western North Atlantic ...... Western North Atlantic ...... Western North Atlantic (WNA) Offshore. WNA Northern Migratory Coastal. –; N –; N –; N 4,102 (0.99, 2,045, 2016) ............ 136 (1.0, 67, 2016) ...................... 62,851 (0.23, 51,914, 2016) ........ 20 0.7 519 0 0 28 –/D; Y 6,639 (0.41, 4,759, 2016) ............ 48 13 1.2– Gulf of Maine/Bay of Fundy Stock. –; N Phocoena phocoena phocoena. 21.5 95,543 (0.31, 74,034, 2016) ........ 851 8 217 27,131 (0.19, 23,158, 2016) ........ 75,834 (0.15, 66,884, 2012) ........ 1,389 2,006 8 4,729 Order Carnivora—Superfamily Pinnipedia Family Phocidae (earless seals): Gray seal ............................... Harbor seal ........................... Halichoerus grypus grypus Phoca vitulina vitulina ....... Western North Atlantic ...... Western North Atlantic ...... –; N –; N 8 350 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (–) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. NMFS automatically designates any species or stock listed under the ESA as depleted and as a strategic stock under the MMPA. 2 NMFS marine mammal stock assessment reports at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; N min is the minimum estimate of stock abundance. In some cases, abundance and PBR is unknown (Unk) and the CV is not applicable. 3 These values, found in NMFS’ SARs, represent PBR and annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, and ship strike). In some cases PBR is unknown (Unk) because the minimum population size cannot be determined. Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or as unknown (Unk). 4 Abundance estimate taken from Pace et al., 2021. 5 Total M/SI of 18.6 for this species is model-derived and not broken down by cause. The fishery contribution of 6.85 is observed interactions only. 6 Given the small proportion of the distribution range that has been sampled and considering the low number of blue whales encountered and photographed, the current data, based on photo-identification, do not allow for an estimate of abundance of this species in the Northwest Atlantic with a minimum degree of certainty (Sears et al. 1987; Hammond et al. 1990; Sears et al. 1990; Sears and Calambokidis 2002; Fisheries and Oceans Canada 2009). 7 The total estimated human-caused mortality and serious injury to the Canadian East Coast minke whale stock is estimated as 10.6 per year (9.15 attributable to fisheries). 8 The NEFSC has historically taken this species in NEFSC research surveys (2004–2015) (see Tables 6–8). 9 The total estimated human-caused mortality and serious injury to the Nova Scotia sei whale stock is estimated as 1.2 per year (0.4 attributable to fisheries). 10 The total estimated human-caused mortality and serious injury to the Western North Atlantic fin whale stock is estimated as 2.35 per year (1.55 attributable to fisheiries). 11 Total M/SI of 58 for this species is model-derived and not broken down by cause. The fishery contribution of 9.5 is observed interactions obly. 12 The total number of this species of beaked whale off the eastern U.S. and Canadian Atlantic coast is unknown, and seasonal abundance estimates are not available for this stock. However, several estimates of the undifferentiated complex of beaked whales (Ziphius and Mesoplodon spp.) from selected regions are available for select time periods (Barlow et al. 2006) as well as two estimates of Mesoplodon spp. beaked whales alone (Waring et al., 2015). 13 The Northern migratory stock of common bottlenose dolphins may interact with unobserved fisheries. Therefore, a range of human-caused mortality and serious injury for this stock is presented. As indicated above, all 35 number species (comprising 37 managed stocks) in Table 3 temporally and spatially cooccur with the surveys provided in Table 1 to the degree that take is reasonably likely to occur, and we have proposed authorizing it. While beluga (Delphinapterus leucas), Bryde’s (Balaenoptera edeni), false killer (Pseudorca crassidens) whales, harp seals (Pagophilus groenlandica) and hooded seals (Cystophora cristata) have been documented in the area, these occurrence records are rare and are considered beyond the normal range of the species. In addition, the manatee (Trichechus manatus latirostris) may be found in the MAB and SE LME. However, manatee are managed by the U.S. Fish and Wildlife Service and are not considered further in this document. A full description of the biology, ecology, and threats to marine mammals listed in Table 3 can be found in NMFS proposed rule for the initial LOA (80 FR 39542; July 9, 2015), NEFSC’s application, and NMFS’ Programmatic VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Environmental Assessment (NMFS, 2016). Please refer to those documents for those descriptions. Table 3 updates information regarding abundance and human interaction and below we update on take reduction planning, unusual mortality events, and biologically important areas. Take reduction planning—Take reduction plans help recover and prevent the depletion of strategic marine mammal stocks that interact with certain U.S. commercial fisheries, as required by Section 118 of the MMPA. The immediate goal of a take reduction plan is to reduce, within six months of its implementation, the M/SI of marine mammals incidental to commercial fishing to less than the PBR level. The long-term goal is to reduce, within five years of its implementation, the M/SI of marine mammals incidental to commercial fishing to insignificant levels, approaching a zero serious injury and mortality rate, taking into account the economics of the fishery, the availability of existing technology, and existing state or regional fishery PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 management plans. NMFS convenes Take Reduction Teams to develop these plans. For marine mammals in specified geographic region of NEFSC research programs, there are currently four take reduction plans in effect (the Atlantic Large Whale Take Reduction Plan, the Bottlenose Dolphin Take Reduction Plan, the Harbor Porpoise Take Reduction Plan, and the Pelagic Longline Take Reduction Plan). As discussed earlier in the ‘‘Proposed Mitigation’’ section, the NEFSC and NEFSC cooperative research projects comply with applicable TRP mitigation measures and gear requirements specified for their respective fisheries and areas. The Atlantic Large Whale Take Reduction Plan (ALWTRP)—The goal of this plan is to reduce mortality/serious injury (M/SI) of North Atlantic right, humpback, fin, and minke whales in several northeast fisheries that use lobster trap/pots and gillnets. Gear modification requirements and restrictions vary by location, date, and E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules gear type but may include the use of weak links, and gear marking and configuration specifications. Detailed requirements may be found in the regional guides to gillnet and pot/trap gear fisheries available at: https:// www.greateratlantic.fisheries.noaa.gov/ Protected/whaletrp/. Of the species/stocks of concern in the ALWTRP, the NEFSC has requested the authorization of incidental M/SI harassment for the minke whale only (see ‘‘Estimated Take by Incidental Harassment’’ later in this document). The Bottlenose Dolphin Take Reduction Plan—The goal of this plan is to reduce M/SI of coastal bottlenose dolphins incidental to the North Carolina inshore gillnet, Southeast Atlantic gillnet, Southeastern U.S. shark gillnet, U.S. Mid-Atlantic coastal gillnet, Atlantic blue crab trap/pot, MidAtlantic haul/beach seine, North Carolina long haul seine, North Carolina roe mullet stop net, and Virginia pound net fisheries (71 FR 24776, April 26, 2006). The following general requirements were implemented: Spatial/temporal gillnet restrictions, gear proximity (fishermen must stay within a set distance of gear), gear modifications, non-regulatory conservation measures, and a revision to the large mesh gillnet size restriction. Detailed requirements may be found at: https://www.nmfs.noaa.gov/pr/ interactions/trt/bdtrp.htm. Of the species/stocks of concern in the take reduction plan, the NEFSC has requested the authorization of incidental M/SI for two stocks of bottlenose dolphins, one of which belongs to a coastal stock covered in the take reduction plan (see ‘‘Estimated Take by Incidental Harassment’’ later in this document). The Harbor Porpoise Take Reduction Plan—The goal of this plan is to reduce interactions between harbor porpoises and commercial gillnet gear fisheries in the New England and the Mid-Atlantic areas. Management includes seasonal time and area closures that correspond with peak seasonal abundances of harbor porpoises and gear modification requirements such as the use of pingers, floatline length, twine size, tie downs, net size, net number, and numbers of nets per string. Detailed requirements may be found at: https:// www.greateratlantic.fisheries.noaa.gov/ protected/porptrp/. The NEFSC has requested the authorization of incidental M/SI harassment for harbor porpoises (see ‘‘Estimated Take by Incidental Harassment’’ later in this document). The Pelagic Longline Take Reduction Plan—The plan addresses M/SI of long- VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 finned and short-finned pilot whales as well as Risso’s, common, and Atlantic white-sided dolphins in commercial pelagic longline fishing gear in the Atlantic. Regulatory measures include limiting mainline length to 20 nautical miles or less within the Mid-Atlantic Bight and posting an informational placard on careful handling and release of marine mammals in the wheelhouse and on working decks of the vessel. Detailed requirements are on the internet at: https://www.greateratlantic. fisheries.noaa.gov/Protected/mmp/ atgtrp/. Of the species/stocks of concern in the take reduction plan, the NEFSC has requested the authorization of incidental M/SI harassment for Risso’s, common, Atlantic spotted dolphin, and Atlantic white-sided dolphins (see ‘‘Estimated Take by Incidental Harassment’’ later in this document). Unusual Mortality Events (UME)— The MMPA defines a UME as ‘‘a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response.’’ From 1991 to the present, there have been 22 formally recognized UMEs in the Atlantic coast region involving species under NMFS’ jurisdiction. Four of those 22 UME are currently open and involve the following species: North Atlantic right whales (NARWs), humpback whales, minke whales, and harbor and gray seals. NARW UME—Beginning in 2017, elevated mortalities in NARWs have been documented, primarily in Canada but some in the U.S. and were collectively declared an Unusual Mortality Event (UME). In 2017, there were a total of 17 confirmed dead stranded whales (12 in Canada; 5 in the United States) and in 2018, three confirmed dead stranded whales in the United States. In 2019, nine dead whales stranded in Canada, and one dead whale stranded in the United States. In 2020, two mortalities were documented. To date in 2021, two mortalities has been documented. The current total confirmed mortalities for the UME are 34 dead stranded whales (21 in Canada; 13 in the United States), and the leading category for the cause of death for this UME is ‘‘human interaction,’’ specifically from entanglements or vessel strikes. Additionally, since 2017, 15 live freeswimming non-stranded whales have been documented with serious injuries from entanglements or vessel strikes. More information on this UME can be found at https:// www.fisheries.noaa.gov/national/ marine-life-distress/2017-2021-north- PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 30095 atlantic-right-whale-unusual-mortalityevent. Atlantic Humpback Whale UME— Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida. In total, 147 whales have stranded along the eastern seaboard. The majority of strandings have occurred from the Outer Banks, NC to Massachusetts. Partial or full necropsy examinations were conducted on approximately half of the whales. Of the whales examined, about 50 percent had evidence of human interaction, either ship strike or entanglement. More information on this UME can be found at https://www.fisheries.noaa.gov/ national/marine-life-distress/2016-2021humpback-whale-unusual-mortalityevent-along-atlantic-coast. Atlantic Minke Whale UME—Since January 2017, elevated minke whale mortalities have occurred along the Atlantic coast from Maine through South Carolina. In total 105 whales have stranded, the majority along the New England coast. More information on this UME can be found at https:// www.fisheries.noaa.gov/national/ marine-life-distress/2017-2021-minkewhale-unusual-mortality-event-alongatlantic-coast. Northeast Pinniped UME—Since July 2018, elevated numbers of harbor seal and gray seal mortalities have occurred across Maine, New Hampshire and Massachusetts. Additionally, seals showing clinical signs have stranded as far south as Virginia, although not in elevated numbers, therefore the UME investigation now encompasses all seal strandings from Maine to Virginia. In total, 3,152 seals have stranded along the mid-Atlantic and New England coast. Full or partial necropsy examinations have been conducted on some of the seals and samples have been collected for testing. Based on tests conducted so far, the main pathogen found in the seals is phocine distemper virus. More information about this UME can be found at https:// www.fisheries.noaa.gov/new-englandmid-atlantic/marine-life-distress/20182020-pinniped-unusual-mortality-eventalong. Of these species involved in active UMEs, the NEFSC has requested, and we propose to authorize, the incidental take, by mortality or serious injury, of minke whales, and harbor and gray seals. The NEFSC has also requested, and we are proposing to authorize, take by Level B harassment for each of these species incidental to the use of active acoustic equipment during fisheries and ecosystem research. See ‘‘Estimated Take’’ later in this document for more E:\FR\FM\04JNP2.SGM 04JNP2 30096 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules information regarding the proposed take. Biologically Important Areas In 2015, NOAA’s Cetacean Density and Distribution Mapping Working Group identified Biologically Important Areas (BIAs) for 24 cetacean species, stocks, or populations in seven regions (US East Coast, Gulf of Mexico, West Coast, Hawaiian Islands, Gulf of Alaska, Aleutian Islands and Bering Sea, and Arctic) within U.S. waters through an expert elicitation process. BIAs are reproductive areas, feeding areas, migratory corridors, and areas in which small and resident populations are concentrated. BIAs are region-, species-, and time-specific. A description of the types of BIAs found within NEFSC fishery research areas follows: Reproductive Areas: Areas and months within which a particular species or population selectively mates, gives birth, or is found with neonates or other sensitive age classes. Feeding Areas: Areas and months within which a particular species or population selectively feeds. These may either be found consistently in space and time, or may be associated with ephemeral features that are less predictable but can be delineated and are generally located within a larger identifiable area. Migratory Corridors: Areas and months within which a substantial portion of a species or population is known to migrate; the corridor is typically delimited on one or both sides by land or ice. Small and Resident Population: Areas and months within which small and resident populations occupying a limited geographic extent exist. The delineation of BIAs does not have direct or immediate regulatory consequences. Rather, the BIA assessment is intended to provide the best available science to help inform analyses and planning for applicants, and to support regulatory and management decisions under existing authorities, and to support the reduction of anthropogenic impacts on cetaceans and to achieve conservation and protection goals. In addition, the BIAs and associated information may be used to identify information gaps and prioritize future research and modeling efforts to better understand cetaceans, their habitat, and ecosystems. Table 4 provides a list of BIAs found within NEFSC fisheries research areas. TABLE 4—BIOLOGICALLY IMPORTANT AREAS WITHIN NEFSC RESEARCH AREAS Size (km2) BIA name Species BIA type Time of year Southwestern Gulf of Maine and George’s Bank. Eastern Atlantic ...................................... East of Montauk Point ............................ Great South Channel and George’s Bank Shelf. Cape Cod Bay and MA Bay ................... Southern Gulf of Maine .......................... Jeffreys Ledge ........................................ Gulf of Maine/Stellwagon Bank/Great South Channel. Gulf of Maine .......................................... Central Gulf of Main—Parker Ridge and Cashes Ledge. Gulf of Maine .......................................... Gulf of Maine .......................................... Northern Gulf of Maine ........................... Minke whale ........... Feeding .................. March–Nov ............................................. 54,341 NARW .................... Fin whale ............... NARW .................... Migration ................ Feeding .................. Feeding .................. North: March–April; South: Nov–Dec ..... March–Oct .............................................. April–June .............................................. 269,448 2,933 12,247 NARW .................... Fin whale ............... NARW .................... Humpback whale ... Feeding Feeding Feeding Feeding .................. .................. .................. .................. Feb–April ................................................ Year-round ............................................. June–July; Oct–Dec ............................... March–Dec ............................................. 3,149 18,015 702 47,701 NARW .................... Minke whale ........... Reproduction ......... Feeding .................. Nov–Jan ................................................. March–Nov ............................................. 8,214 2,256 Harbor porpoise ..... Sei whale ............... Fin whale ............... Small and resident Feeding .................. Feeding .................. July–Sept ............................................... May–Nov ................................................ June–Oct ................................................ 12,211 56,609 6,146 Marine Mammal Hearing Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for lowfrequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in Table 5. TABLE 5—MARINE MAMMAL HEARING GROUPS [NMFS, 2018] Generalized hearing range * Hearing group 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) .............................................................................................................. VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2 7 Hz to 35 kHz. 150 Hz to 160 kHz. 275 Hz to 160 kHz. 50 Hz to 86 kHz. Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules 30097 TABLE 5—MARINE MAMMAL HEARING GROUPS—Continued [NMFS, 2018] Generalized hearing range * Hearing group Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .......................................................................................... 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). The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemila¨ et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013). For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Thirty-eight marine mammal species (33 cetacean and 2 pinniped (2 phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 3. Of the cetacean species that may be present, 6 are classified as low-frequency cetaceans (i.e., all mysticete species), 25 are classified as mid-frequency cetaceans (i.e., all delphinid and ziphiid species and the sperm whale), and 3 are classified as high-frequency cetaceans (i.e., harbor porpoise and Kogia spp.). Potential Effects of Specified Activities on Marine Mammals and Their Habitat This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. We note that the potential effects from NEFSC fisheries and ecosystem research (i.e., gear interaction and acoustic impacts) remain the same as those described in the Federal Register notices associated with the issuance of the NEFSC’s current LOA. Effects to marine mammals are also described in NMFS’ 2020 Draft Supplemental EA. VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 We reiterate that information here and, where appropriate, we updated the information to reflect data contained within the NEFSC’s annual monitoring reports received pursuant to the 2016– 2021 LOA. Ship Strike Vessel collisions with marine mammals, or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface may be struck directly by a vessel, a surfacing animal may hit the bottom of a vessel, or an animal just below the surface may be cut by a vessel’s propeller. More superficial strikes may not kill or result in the death of the animal. These interactions are typically associated with large whales (e.g., fin whales), which are occasionally found draped across the bulbous bow of large commercial ships upon arrival in port. Although smaller cetaceans or pinnipeds are more maneuverable in relation to large vessels than are large whales, they may also be susceptible to strike. The severity of injuries typically depends on the size and speed of the vessel, with the probability of death or serious injury increasing as vessel speed increases (Knowlton and Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007; Conn and Silber, 2013). Impact forces increase with speed, as does the probability of a strike at a given distance (Silber et al., 2010; Gende et al., 2011). Pace and Silber (2005) found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 to 75 percent as vessel speed increased from 10 to 14 nautical mile per hour (kts), and exceeded ninety percent at 17 kts. Higher speeds during collisions result in greater force of impact, but higher speeds also appear to increase the chance of severe injuries or death through increased likelihood of collision by pulling whales toward the vessel (Clyne, 1999; Knowlton et al., PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 1995). In a separate study, Vanderlaan and Taggart (2007) analyzed the probability of lethal mortality of large whales at a given speed, showing that the greatest rate of change in the probability of a lethal injury to a large whale as a function of vessel speed occurs between 8.6 and 15 kt. The chances of a lethal injury decline from approximately eighty percent at 15 kts to approximately twenty percent at 8.6 kts. At speeds below 11.8 kts, the chances of lethal injury drop below fifty percent, while the probability asymptotically increases toward one hundred percent above 15 kt. In an effort to reduce the number and severity of strikes of the endangered NARW, NMFS implemented speed restrictions in 2008 (73 FR 60173; October 10, 2008). These restrictions require that vessels greater than or equal to 65 ft (19.8 m) in length travel at less than or equal to 10 kn near key port entrances and in certain areas of right whale aggregation along the U.S. eastern seaboard. Conn and Silber (2013) estimated that these restrictions reduced total ship strike mortality risk levels by eighty to ninety percent. For vessels used in NEFSC research activities, transit speeds average 10 kt (but vary from 6–14 kt), while vessel speed during active sampling is typically only 2 to 4 kt. At sampling speeds, both the possibility of striking a marine mammal and the possibility of a strike resulting in serious injury or mortality are discountable. At average transit speed, the probability of serious injury or mortality resulting from a strike, if one occurred, is less than fifty percent. However, the likelihood of a strike actually happening is again discountable. Ship strikes, as analyzed in the studies cited above, generally involve commercial shipping, which is much more common in both space and time than is research activity. Jensen and Silber (2004) summarized ship strikes of large whales worldwide from 1975–2003 and found that most collisions occurred in the open ocean and involved large vessels (e.g., commercial shipping). Commercial fishing vessels were responsible for three percent of recorded collisions, E:\FR\FM\04JNP2.SGM 04JNP2 30098 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules while only one such incident (0.75 percent) was reported for a research vessel during that time period. It is possible for ship strikes to occur while traveling at slow speeds. For example, a NOAA-chartered survey vessel traveling at low speed (5.5 kt) while conducting multi-beam mapping surveys off the central California coast struck and killed a blue whale in 2009. The State of California determined that the whale had suddenly and unexpectedly surfaced beneath the hull, with the result that the propeller severed the whale’s vertebrae, and that this was an unavoidable event. This strike represents the only such incident in approximately 540,000 hours of similar coastal mapping activity (p = 1.9 × 10¥6; 95% CI = 0–5.5 × 10¥6; NMFS, 2013). In addition, a non-NEFSC research vessel reported a fatal strike in 2011 of a dolphin in the Atlantic, demonstrating that it is possible for strikes involving smaller cetaceans or pinnipeds to occur. In that case, the incident report indicated that an animal apparently was struck by the vessel’s propeller as it was intentionally swimming near the vessel. While indicative of the type of unusual events that cannot be ruled out, neither of these instances represents a circumstance that would be considered reasonably foreseeable or that would be considered preventable. In summary, we anticipate that vessel collisions involving NEFSC research vessels, while not impossible, represent unlikely, unpredictable events. NEFSC has not documented any ship strikes or near-misses in their monitoring reports pursuant to the current LOA. In addition, there are several preventive measures to minimize the risk of vessel collisions with right whales and other species of marine mammals. The compliance guide for the right whale ship strike reduction rule states that all vessels 19.8 m in overall length or greater must slow to speeds of 10 kts or less in seasonal management areas. Northeast U.S. Seasonal Management Areas include: Cape Cod Bay (1 Jan–15 May), off Race Point (1 Mar–30 Apr) and GSC (1 Apr–31 July). Mid-Atlantic Seasonal Management Areas include several port or bay entrances from 1 November to 30 April. When operating in these Seasonal Management Areas, Dynamic Management Areas, or in the vicinity of right whales or surface active groups of large baleen whales the vessel’s speed will not exceed 10 kts. The purpose of this mandatory regulation is to reduce the likelihood of deaths and serious injuries to these endangered whales that result from collisions with a vessel (78 FR 73726, VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 December 9, 2013). Further, because vessels of all sizes can strike a whale, NEFSC research vessels will also reduce speed and change course in the vicinity of resting groups of large whales. When transiting between sampling stations, research vessels can travel at speeds of up to 14 knots. However, when NEFSC vessels are operating in right whale Seasonal Management Areas, Dynamic Management Areas, or at times and locations when whales are otherwise known to be present, they operate at speeds no greater than 10 knots. NEFSC research vessel captains and crew watch for marine mammals while underway during daylight hours and take necessary actions to avoid them. NEFSC surveys using large NOAA vessels (e.g., R/V Henry B. Bigelow) include one bridge crew dedicated to watching for obstacles at all times, including marine mammals. At any time during a survey or in transit, any bridge personnel that sights protected species that may intersect with the vessel course immediately communicates their presence to the helm for appropriate course alteration or speed reduction as possible to avoid incidental collisions, particularly with large whales (e.g., NARWs). Finally, the Right Whale Sighting Advisory System (RWSAS) is a NMFS program designed to reduce collisions between ships and the critically endangered NARW by alerting mariners to the presence of the right whales. All NOAA research vessels operating in NARW habitat participate in the RWSAS. No ship strikes have been reported from any fisheries research activities conducted or funded by the NEFSC in the Atlantic coast region. Given the relatively slow speeds of research vessels, the presence of bridge crew watching for obstacles at all times (including marine mammals), the presence of marine mammal observers on some surveys, and the small number of research cruises, we believe that the possibility of ship strike is discountable and, further, that were a strike of a large whale to occur, it would be unlikely to result in serious injury or mortality. No incidental take resulting from ship strike is anticipated, and this potential effect of research will not be discussed further in the following analysis. Fishing Gear Interactions Marine mammals are known to regularly remove catch or bait (i.e., depredate) from commercial fisheries’ lines or nets, and some species (primarily pinnipeds) take fish from mariculture pens. Depredation has been documented in over 30 species of PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 marine mammals and from various types of gear (e.g., Read 2008; Reeves et al., 2013; Werner et al., 2015). For example, some individuals in populations of sperm, killer, false killer, and pilot whales around the world have become adept at removing a variety of fish species from longline hooks, a behavior also exhibited by other toothed whales and dolphins in a wide range of fisheries. Other species have learned to take catch from trawl or gill nets (e.g., Kovaks et al., 2017). Marine mammals are widely regarded as being quite intelligent and inquisitive, and when their pursuit of prey coincides with human pursuit of the same resources, it should be expected that physical interaction with fishing gear may occur (e.g., Beverton, 1985). Fishermen and marine mammals are both drawn to areas of high prey density, and certain fishing activities may further attract marine mammals by providing food (e.g., bait, captured fish, bycatch discards) or by otherwise making it easier for animals to feed on a concentrated food source. Provision of foraging opportunities near the surface may present an advantage by negating the need for energetically expensive deep foraging dives (Hamer and Goldsworthy, 2006). Trawling, for example, can make available previously unexploited food resources by gathering prey that may otherwise be too fast or deep for normal predation, or may concentrate calories in an otherwise patchy landscape (Fertl and Leatherwood, 1997). Pilot whales, which are generally considered to be teuthophagous (i.e., feeding primarily on squid), were commonly observed in association with Atlantic mackerel (Scomber scombrus) trawl fisheries from 1977–88 in the northeast U.S. EEZ (Waring et al., 1990). Not surprisingly, stomach contents of captured whales were observed to have high proportions of mackerel (68 percent of non-trace food items), indicating that the ready availability of a novel, concentrated, high-calorie prey item resulted in changed dietary composition (Read, 1994). These interactions can result in injury or death for the animal(s) involved and/ or damage to fishing gear. Coastal animals, including various pinnipeds, bottlenose dolphins, and harbor porpoises, are perhaps the most vulnerable to these interactions. They are most likely to interact with set or passive fishing gear such as gillnets, traps (Beverton, 1985; Barlow et al., 1994; Read et al., 2006; Byrd et al., 2014; Lewison et al., 2014). Although interactions are less common for use of trawl nets and longlines, they do occur E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules with sufficient frequency to necessitate the establishment of required mitigation measures for multiple U.S. fisheries using both types of gear (NMFS, 2014). It is likely that no species of marine mammal can be definitively excluded from the potential for interaction with fishing gear (e.g., Northridge, 1984); however, the extent of interactions is likely dependent on the biology, ecology, and behavior of the species involved and the type, location, and nature of the fishery. Trawl Nets As described previously, trawl nets are towed nets (i.e., active fishing) consisting of a cone-shaped net with a codend or bag for collecting the fish and can be designed to fish at the bottom, surface, or any other depth in the water column. Here we refer to bottom trawls and midwater trawls (i.e., any net not designed to tend the bottom while fishing). Trawl nets in general have the potential to capture or entangle marine mammals, which have been known to be caught in bottom trawls, presumably when feeding on fish caught therein, and in midwater trawls, which may or may not be coincident with their feeding (Northridge, 1984). Capture or entanglement may occur whenever marine mammals are swimming near the gear, intentionally (e.g., foraging) or unintentionally (e.g., migrating), and any animal captured in a net is at significant risk of drowning unless quickly freed. Animals can also be captured or entangled in netting or tow lines (also called lazy lines) other than the main body of the net; animals may become entangled around the head, body, flukes, pectoral fins, or dorsal fin. Interaction that does not result in the immediate death of the animal by drowning can cause injury (i.e., Level A harassment) or serious injury. Constricting lines wrapped around the animal can immobilize the animal or injure it by cutting into or through blubber, muscles and bone (i.e., penetrating injuries) or constricting blood flow to or severing appendages. Immobilization of the animal, if it does not result in immediate drowning, can cause internal injuries from prolonged stress and/or severe struggling and/or impede the animal’s ability to feed (resulting in starvation or reduced fitness) (Andersen et al., 2008). Marine mammal interactions with trawl nets, through capture or entanglement, are well-documented. Dolphins are known to attend operating nets to either benefit from disturbance of the bottom or to prey on discards or fish within the net. For example, Leatherwood (1975) reported that the VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 most frequently observed feeding pattern for bottlenose dolphins in the Gulf of Mexico involved herds following working shrimp trawlers, apparently feeding on organisms stirred up from the benthos. Bearzi and di Sciara (1997) opportunistically investigated working trawlers in the Adriatic Sea from 1990– 94 and found that ten percent were accompanied by foraging bottlenose dolphins. However, midwater trawls have greater potential to capture cetaceans, because the nets may be towed at faster speeds, these trawls are more likely to target species that are important prey for marine mammals (e.g., squid, mackerel), and the likelihood of working in deeper waters means that a more diverse assemblage of species could potentially be present (Hall et al., 2000). Globally, at least seventeen cetacean species are known to feed in association with trawlers and individuals of at least 25 species are documented to have been killed by trawl nets, including several large whales, porpoises, and a variety of delphinids (Karpouzli and Leaper, 2004; Hall et al., 2000; Fertl and Leatherwood, 1997; Northridge, 1991). At least eighteen species of seals and sea lions are known to have been killed in trawl nets (Wickens, 1995). Generally, direct interaction between trawl nets and marine mammals (both cetaceans and pinnipeds) has been recorded wherever trawling and animals co-occur. Tables 8, 9, and 10 (later in this document) display more recent information regarding interactions specifically in U.S. fisheries and are more relevant to the development of take estimates for this proposed rule. In evaluating risk relative to a specific fishery (or comparable research survey), one must consider the size of the net as well as frequency, timing, and location of deployment. These considerations inform determinations of whether interaction with marine mammals is likely. For example, in most cases, research gear employs smaller nets and shorter longlines than commercial gear. Similarly, net soak times for research are often shorter than commercial fisheries and, in many cases, are monitored. Longlines—Longlines are basically strings of baited hooks that are either anchored to the bottom, for targeting groundfish, or are free-floating, for targeting pelagic species and represent a passive fishing technique. Pelagic longlines, which notionally fish near the surface with the use of floats, may be deployed in such a way as to fish at different depths in the water column. For example, deep-set longlines targeting tuna may have a target depth PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 30099 of 400 m, while a shallow-set longline targeting swordfish is set at 30–90 m depth. We refer here to bottom and pelagic longlines. Any longline generally consists of a mainline from which leader lines (gangions) with baited hooks branch off at a specified interval, and is left to passively fish, or soak, for a set period of time before the vessel returns to retrieve the gear. Longlines are marked by two or more floats that act as visual markers and may also carry radio beacons; aids to detection are of particular importance for pelagic longlines, which may drift a significant distance from the deployment location. Pelagic longlines are generally composed of various diameter monofilament line and are generally much longer, and with more hooks, than are bottom longlines. Bottom longlines may be of monofilament or multifilament natural or synthetic lines. Marine mammals may be hooked or entangled in longline gear, with interactions potentially resulting in death due to drowning, strangulation, severing of carotid arteries or the esophagus, infection, an inability to evade predators, or starvation due to an inability to catch prey (Hofmeyr et al., 2002), although it is more likely that animals will survive being hooked if they are able to reach the surface to breathe. Injuries, which may include serious injury, include lacerations and puncture wounds. Animals may attempt to depredate either bait or catch, with subsequent hooking, or may become accidentally entangled. As described for trawls, entanglement can lead to constricting lines wrapped around the animals and/or immobilization, and even if entangling materials are removed the wounds caused may continue to weaken the animal or allow further infection (Hofmeyr et al., 2002). Large whales may become entangled in a longline and then break free with a portion of gear trailing, resulting in alteration of swimming energetics due to drag and ultimate loss of fitness and potential mortality (Andersen et al., 2008). Weight of the gear can cause entangling lines to further constrict and further injure the animal. Hooking injuries and ingested gear are most common in small cetaceans and pinnipeds but have been observed in large cetaceans (e.g., sperm whales). The severity of the injury depends on the species, whether ingested gear includes hooks, whether the gear works its way into the gastrointestinal (GI) tract, whether the gear penetrates the GI lining, and the location of the hooking (e.g., embedded in the animal’s stomach E:\FR\FM\04JNP2.SGM 04JNP2 30100 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules or other internal body parts) (Andersen et al., 2008). Bottom longlines pose less of a threat to marine mammals due to their deployment on the ocean bottom, but can still result in entanglement in buoy lines or hooking as the line is either deployed or retrieved. The rate of interaction between longline fisheries and marine mammals depends on the degree of overlap between longline effort and species distribution, hook style and size, type of bait and target catch, and fishing practices (such as setting/hauling during the day or at night). The NEFSC plans to use pelagic and bottom longline gear in four programs: The Apex Predators Bottom Longline Coastal Shark, Apex Predators Pelagic Nursery Grounds Shark, Apex Predator Pelagic Longline Shark, and Cooperative Atlantic States Shark Pupping and Nursery (COASTSPAN) Longline surveys. The NEFSC has no recorded marine mammal interactions during the conduct of its pelagic and bottom longline surveys in the Atlantic coast region. While the NEFSC has not historically interacted with large whales or other cetaceans in its longline gear, documentation exists that some of these species are taken in commercial longline fisheries. NEFSC uses a shorter mainline length and lower number of hooks relative to that of commercial fisheries. Gillnets—Marine mammal interactions with gillnets, through entanglement, are well-documented (Reeves et al., 2013). At least 75 percent of odontocete species, 64 percent of mysticetes, 66 percent of pinnipeds, all sirenians, and marine mustelids have been recorded as gillnet bycatch over the past 20-plus years (Reeves et al., 2013). Reeves et al. (2013) note that numbers of marine mammals killed in gillnets tend to be greatest for species that are widely distributed in coastal and shelf waters. Common dolphins and striped dolphins, for example, have continued to be taken in large numbers globally despite the fact that large-scale driftnet fishing on the high seas has been illegal since 1993, eliminating one source of very large bycatches of northern right whale dolphins and common dolphins (Reeves et al., 2013). Minke whales are probably especially vulnerable to gillnet entanglement for several reasons, including their nearshore and shelf occurrence, their proclivity for preying on fish species that are also targeted by net fisheries, and their small size and consequently greater difficulty (compared to the larger mysticetes) of extricating themselves once caught (Reeves et al., 2013). VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Entanglement in fishing gear and bycatch in commercial fisheries occur with regularity in the Northeast and Mid-Atlantic regions and are the primary known causes of mortality and serious injury for pinnipeds in these areas. Gillnets are responsible for most observed and reported bycatch for marine mammals (Lewison et al., 2014; Zollett, 2009). From 2013–2017, the total human caused mortality and serious injury to harbor seals is estimated to be 350 per year (338 from fisheries and 12 from non-fisheryrelated interaction stranding mortalities) (Hayes, Josephson et al. 2020). The average annual estimated human-caused mortality and serious injury to gray seals in the U.S. and Canada was 5,410 per year for the period 2013–2017 (946 U.S./4,464 Canada). This average is based on: 940 from U.S. observed fisheries; 5.6 from non-fishery human interaction stranding and shooting mortalities in the U.S.; 0.8 from U.S. research mortalities; 672 Canadian commercial harvest; 55 from the DFO scientific collections; and 3,737 removals of nuisance animals in Canada (DFO 2017, Mike Hammill pers. comm; as cited in Hayes, Josephson et al. 2020). Fyke Nets Fyke nets are bag-shaped nets which are held open by frames or hoops. The fyke nets used in NEFSC survey activities are constructed of successively smaller plastic coated square metal tube frames that are covered with mesh net (0.6 centimeters for small, 1.9 centimeters for large). Each net has two throats tapering to a semi-rigid opening. The final compartment of the net is configured with a rigid framed live box (2 x 2 x 3 meters) at the surface for removal of catch directly from above without having to retrieve the entire net. Fyke nets are normally set inshore by small boat crews. It is unknown whether fyke nets have been responsible for marine mammal mortality or serious injury (NMFS 2021). In commercial fisheries, fyke nets fall into Category III on the List of Fisheries. Although bycatch is well known and well studied in marine fisheries, there are few studies on bycatch in freshwater fisheries using fyke nets (Larocque et al., 2011). Fyke nets are passive fishing gear that have limited species selectivity and are set for long durations (Hubert, 1996; Larocque et al., 2011). Thus, this gear has the potential to capture nontargeted fauna that use the same habitat as targeted species, even without the use of bait (Larocque et al., 2011). Mortality in fyke nets can arise from stress and injury associated with anoxia, abrasion, confinement, and starvation (Larocque PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 et al., 2011); however, it is unknown whether fyke nets have been responsible for marine mammal mortality or serious injury (NMFS 2021). Other Research Gear—All other gears used in NEFSC fisheries research (e.g., a variety of plankton nets, CTDs, ROVs) do not have the expected potential for marine mammal interactions, and are not known to have been involved in any marine mammal interaction. Specifically, these include CTDs, XBTs, CUFES, ROVs, small trawls (Oozeki, IKMT, MOCNESS, and Tucker trawls), plankton nets (Bongo, Pairovet, and Manta nets), and vertically deployed or towed imaging systems to be no-impact gear types. Unlike trawl nets and longline gear, which are used in both scientific research and commercial fishing applications, these other gears are not considered similar or analogous to any commercial fishing gear and are not designed to capture any commerciallysalable species, or to collect any sort of sample in large quantities. They are not considered to have the potential to take marine mammals primarily because of their design and how they are deployed. For example, CTDs are typically deployed in a vertical cast on a cable and have no loose lines or other entanglement hazards. A Bongo net is typically deployed on a cable, whereas neuston nets (these may be plankton nets or small trawls) are often deployed in the upper one meter of the water column; either net type has very small size (e.g., two bongo nets of 0.5 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. NEFSC Gear Interactions From 2004 through 2015, NEFSC documented ten individual marine mammals that were killed from interactions with NEFSC’s gear: Six were killed due to capture in gillnets, a harbor seal suffered mortality in fyke nets, and one minke whale was caught in trawl gear and released alive. No interactions with NEFSC survey gear were observed in 2016, 2017 or 2018. On September 24, 2019, during a Cooperative Research NTAP cruise sponsored by the NEFSC, a small common dolphin (Length = 231 cm approx. 150 lbs) was found dead from entanglement in fishing gear upon inspection of the catch. The gear was a 4 seam 3 bridle Bigelow trawl net with a spread restrictor cable. The take occurred during reduced visibility (at night/early morning conditions), so visually scanning for marine mammals E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules was difficult. Deployment of the net took place within fifteen minutes of arrival on station during which time no marine mammals were present or sighted during the approach or at the sampling site. Vessel personnel maintained watch for marine mammals during trawling operations. None were sighted, so the station was completed. The tows were short in duration (20 minutes) and the vessel maintained a consistent tow speed of 3 knots. During fishing, there was no indication there was a marine mammal in the net nor were any marine mammals observed. Upon completion of the trawl, the nets (twin trawl) were recovered and each catch was dumped immediately into a checker. It was at this time, the marine mammal was detected (fresh dead). No other marine mammals were observed in the net or in the water. More details on this interaction can be found the NEFSC 2019 Annual Monitoring available at https:// www.fisheries.noaa.gov/action/ incidental-take-authorization-noaafisheries-nefsc-fisheries-and-ecosystemresearch. In 2020, no interactions with marine mammals occurred. Acoustic Effects Detailed descriptions of the potential effects of NEFSC’s use of acoustic sources are provided in other Federal Register notice for the original incidental take regulations issued to the NEFSC (80 FR 39542; January 9, 2015) and, more recently, other NMFS Science Centers (e.g., the ‘‘Acoustic Effects’’ section of the proposed rule for the taking of marine mammals incidental to NMFS Alaska Fisheries Science Center fisheries research (83 FR 37660; August 1, 2018), and the ‘‘Potential Effects of Underwater Sound’’ section of the proposed rule for the taking of marine mammals incidental to NMFS Southeast Fisheries Science Center research (84 FR 6603; February 27, 2019). No significant new information is available, and those discussions provide the necessary adequate and relevant information regarding the potential effects of NEFSC’s specified activity on marine mammals and their habitat. Therefore, we refer the reader to those documents rather than repeating the information here. Exposure to sound through the use of active acoustic systems for research purposes may result in Level B harassment. However, as detailed in the previously referenced discussions, Level A harassment in the form of permanent threshold shift (PTS) is extremely unlikely to occur, and we consider such effects discountable. With specific reference to Level B harassment that VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 may occur as a result of acoustic exposure, we note that the analytical methods described in the incidental take regulations for other NMFS Science Centers are retained here. However, the state of science with regard to our understanding of the likely potential effects of the use of systems like those used by NEFSC has advanced in recent years, as have readily available approaches to estimating the acoustic footprints of such sources, with the result that we view this analysis as highly conservative. Although more recent literature provides documentation of marine mammal responses to the use of these and similar acoustic systems (e.g., Cholewiak et al., 2017; Quick et al., 2017; Varghese et al., 2020), the described responses do not generally comport with the degree of severity that should be associated with Level B harassment, as defined by the MMPA. We retain the analytical approach described in the incidental take regulations for other NMFS Science Centers for consistency with existing analyses and for purposes of efficiency here, and consider this acceptable because the approach provides a conservative estimate of potential incidents of Level B harassment (see ‘‘Estimated Take’’ section of this notice). In summary, while we propose to authorize the amount of take by Level B harassment indicated in the ‘‘Estimated Take’’ section, and consider these potential takings at face value in our negligible impact analysis, it is uncertain whether use of these acoustic systems are likely to cause take at all, much less at the estimated levels. Potential Effects of Visual Disturbance The NEFSC anticipates that some trawl and fyke net surveys may disturb a small number of pinnipeds during the conduct of these activities in upper Penobscot Bay above Fort Point Ledge, ME. Specifically, two surveys have the potential to harass pinnipeds from visual disturbance: The Penobscot Estuarine Fish Community and Ecosystem Survey (trawls) and the Marine Estuaries Diadromous Survey (fyke nets). Pinnipeds are expected to be hauled out on tidal ledges and at times may experience incidental close approaches by the survey vessel and/or researchers during the course of its fisheries research activities. The NEFSC expects that some of these animals will exhibit a behavioral response to the visual stimuli (e.g., including alert behavior, movement, vocalizing, or flushing). NMFS does not consider the lesser reactions (e.g., alert behavior) to constitute harassment. These events are expected to be infrequent and cause PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 30101 only a temporary disturbance on the order of minutes. In areas where disturbance of haulouts due to periodic human activity (e.g., researchers approaching on foot, passage of small vessels, maintenance activity) occurs, monitoring results have generally indicated that pinnipeds typically move or flush from the haulout in response to human presence or visual disturbance, although some individuals typically remain hauled out (e.g., SCWA, 2012). The nature of response is generally dependent on species. For example, California sea lions and northern elephant seals have been observed as less sensitive to stimulus than harbor seals during monitoring at numerous sites. Monitoring of pinniped disturbance as a result of abalone research in the Channel Islands showed that while harbor seals flushed at a rate of 69 percent, California sea lions flushed at a rate of only 21 percent. The rate for elephant seals declined to 0.1 percent (VanBlaricom, 2010). Upon the occurrence of low-severity disturbance (i.e., the approach of a vessel or person as opposed to an explosion or sonic boom), pinnipeds typically exhibit a continuum of responses, beginning with alert movements (e.g., raising the head), which may then escalate to movement away from the stimulus and possible flushing into the water. Flushed pinnipeds typically re-occupy the haulout within minutes to hours of the stimulus. In a popular tourism area of the Pacific Northwest where human disturbances occurred frequently, past studies observed stable populations of seals over a twenty-year period (Calambokidis et al., 1991). Despite high levels of seasonal disturbance by tourists using both motorized and 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 minutes of the vessels’ passing (Fox, 2008). If vessels passed frequently within a short time period (e.g., 24 hours), a reduction in the total number of seals present was also observed (Fox, 2008). Level A harassment, serious injury, or mortality could likely only occur as a result of trampling in a stampede (a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus) or abandonment of pups. However, given the nature of E:\FR\FM\04JNP2.SGM 04JNP2 30102 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules potential disturbance—which would entail the gradual and highly visible approach of a small vessel and small research crew—we would expect that pinnipeds would exhibit a gradual response escalation, and that stampeding or abandonment of pups would likely not be an issue. Further, neither survey with potential for harassment from visual disturbance overlaps with the gray seal pupping period. Disturbance of pinnipeds caused by NEFSC survey activities—which are sparsely distributed in space and time— would be expected to last for only short periods of time, separated by significant amounts of time in which no disturbance occurred. The Penobscot Estuarine Fish Community and Ecosystem Survey uses shrimp trawls and occurs over 12 days per year split between spring, summer and fall seasons. The Marine Estuaries Diadromous Survey uses fyke nets and takes place over 100 days from April to November. Because such disturbance is sporadic, rather than chronic, and of low intensity, individual marine mammals are unlikely to incur any detrimental impacts to vital rates or ability to forage and, thus, loss of fitness. Correspondingly, even local populations, much less the overall stocks of animals, are extremely unlikely to accrue any significantly detrimental impacts. Anticipated Effects on Marine Mammal Habitat Effects to Prey—In addition to direct, or operational, interactions between fishing gear and marine mammals, indirect (i.e., biological or ecological) interactions occur as well, in which marine mammals and fisheries both utilize the same resource, potentially resulting in competition that may be mutually disadvantageous (e.g., Northridge, 1984; Beddington et al., 1985; Wickens, 1995). Marine mammal prey varies by species, season, and location and, for some marine mammals, is not well documented. NEFSC fisheries research removals of species commonly utilized by marine mammals are relatively low. Prey of sei whales and blue whales are primarily zooplankton, which are targeted by NEFSC fisheries research with collection only on the order of liters, so the likelihood of research activities changing prey availability is low and impact negligible to none. Prey species biomass removed during NEFSC surveys is very small relative to their overall biomass in the area and is a very small percentage of the Allowable Biological Catch (ABC). For example, NEFSC VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 fisheries research activities may affect sperm whale prey (squid), but this is expected to be minor due to the insignificant amount of squid removed through fisheries research (i.e., 4 tons in 2017). However, here the removal by NEFSC fisheries research, regardless of season and location is minor relative to that taken through commercial fisheries. For example, commercial fisheries catches for most pelagic species typically range from the hundreds to thousands of metric tons, whereas the catch in similar fisheries research activities would only occasionally range as high as hundreds to thousands of pounds in any particular year (see Table 9–1 of the NEFSC Application for more information on fish catch during research surveys and commercial harvest). In addition to the small amount of biomass removed, the size classes of fish targeted in research surveys are juvenile individuals, some of which are only centimeters long; these small size classes are not known to be prey of marine mammals. Research catches are also distributed over a wide area because of the random sampling design covering large sample areas. Fish removals by research are therefore highly localized and unlikely to affect the spatial concentrations and availability of prey for any marine mammal species. The overall effect of research catches on marine mammals through competition for prey may therefore be considered insignificant for all species. Physical Habitat—NEFSC conducts some bottom trawling, which may physically damage seafloor habitat. In addition, NEFSC fishery research activities use bottom contact fishing gear, including otter trawls, sea scallop dredges, and hydraulic surfclam dredges. Other fishing gear that contacts the seafloor, such as pots and traps, can cause physical damage but the impacts are localized and minimal as this type of gear is fixed in position. The ropeless lobster traps planned for ongoing use would have minimal effect of seafloor habitat. Physical damage may include furrowing and smoothing of the seafloor as well as the displacement of rocks and boulders, and such damage can increase with multiple contacts in the same area (Schwinghamer et al., 1998; Kaiser et al., 2002; Malik and Mayer, 2007; NRC, 2002). The effects of bottom contact gear differ in each type of benthic environment. In sandy habitats with strong currents, the furrows created by mobile bottom contact gear quickly begin to erode because lighter weight sand at the edges of furrows can be easily moved by water back towards the center of the furrow (NRC, 2002). PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 Duration of effects in these environments therefore tend to be very short because the terrain and associated organisms are accustomed to natural disturbance. By contrast, the physical features of more stable hard bottom habitats are less susceptible to disturbance, but once damaged or removed by fishing gear, the organisms that grow on gravel, cobbles, and boulders can take years to recover, especially in deeper water where there is less natural disturbance (NRC, 2002). However, the area of benthic habitat affected by NEFSC research each year would be a very small fraction of total area of benthic habitat in the research areas. Damage to seafloor habitat may also harm infauna and epifauna (i.e., animals that live in or on the seafloor or on structures on the seafloor), including corals (Schwinghamer et al., 1998; Collie et al., 2000; Stevenson et al., 2004). In general, recovery from biological damage varies based on the type of fishing gear used, the type of seafloor surface (i.e., mud, sand, gravel, mixed substrate), and the level of repeated disturbances. Recovery timelines of 1–18 months are expected. However, repeated disturbance of an area can prolong the recovery time (Stevenson et al., 2004), and recovery of corals may take significantly longer than 18 months. Organisms such as cold water corals create structure on the seafloor that not only contain a high diversity of corals but also provide an important habitat for other infauna (Stevenson, Chiarella et al. 2004). Cold water corals are generally slow growing, fragile and long lived that makes them particularly vulnerable to damage. Fishing gear that contacts coral can break or disrupt corals reducing structural complexity and reducing species diversity of the corals and other animals that utilize this habitat (Freiwald, Fossa et al. 2004). The extent of overlap between cold water corals and NEFSC survey vessels is expected to be limited given the small number and small areal extent of NEFSC surveys and funded fishery research using bottom trawl and dredging equipment. In addition, only two surveys occur outside of the LME, the Deepwater Biodiversity Survey and the Deep-sea Corals Survey. Neither of these surveys use bottom contacting gear. Although fisheries research effects on corals may be long-term, the magnitude of this potential effect is negligible. Fishing gear that contacts the seafloor can increase the turbidity of the water by suspending fine sediments and benthic algae. Suspension of fine sediments and turnover of sediment can E:\FR\FM\04JNP2.SGM 04JNP2 30103 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules also alter the geochemistry of the seafloor and the water column, but impacts of alteration of turbidity and geochemistry in the water column are not very well understood (Stevenson, Chiarella et al. 2004). These types of effects from fisheries research activities would be periodic, temporary, and localized and are considered negligible. As described in the preceding, the potential for NEFSC research to affect the availability of prey to marine mammals or to meaningfully impact the quality of physical or acoustic habitat is considered to be insignificant for all species. Effects to marine mammal habitat will not be discussed further in this document. Estimated Take This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS’ consideration of ‘‘small numbers’’ and the negligible impact determination. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines ‘‘harassment’’ as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Take of marine mammals incidental to NEFSC research activities could occur as a result of (1) injury or mortality due to gear interaction (Level A harassment, serious injury, or mortality); (2) behavioral disturbance resulting from the use of active acoustic sources (Level B harassment only); or (3) behavioral disturbance of pinnipeds resulting from incidental approach of researchers and research vessels (Level B harassment only). Below we describe how the potential take is estimated. Estimated Take Due to Gear Interaction To estimate the number of potential takes that could occur by M/SI and Level A through gear interaction, consideration of past interactions between gear (i.e., trawl, gillnet, and fyke gear) used by NEFSC and specific marine mammal species provides important context. We also considered other species that have not been taken by NEFSC but are similar enough in nature and behavioral patterns as to consider them having the potential to be entangled. As described in the ‘‘Potential Effects of Marine Mammals and their Habitat’’ section, NEFSC has a history of taking marine mammals in fishing gear, albeit a very small amount compared to the amount of fishing effort. From 2004–2015, eight marine mammals were killed in interactions with trawl gear (common dolphin, gray seal), six were killed due to capture in gillnets (Common bottlenose, Northern South Carolina estuarine stock, gray seal, harbor porpoise and bottlenose dolphin), and one suffered mortality in a fyke net (harbor seal). Also over that time period, one minke whale was caught in trawl gear and released alive. We note these interactions occurred prior to implementation of the existing regulations which heightened mitigation and monitoring efforts. From 2016– 2018, no marine mammals were taken incidental to fishing. A lethal take of a common dolphin during a Cooperative Research NTAP cruise sponsored by the Center occurred in late September 2019. The gear was a 4 seam 3 bridle Bigelow net with a spread restrictor cable. In 2020, no takes occurred. Historical Interactions—In order to estimate the number of potential incidents of take that could occur by M/ SI through gear interaction, we first consider the NEFSC’s past record of such incidents, and then consider in addition other species that may have similar vulnerabilities to the NEFSC’s trawl, gillnet, and fyke net gear for which we have historical interaction records. We describe historical interactions with NEFSC research gear in Tables 6, 7, and 8. Available records are for the years 2004 through the present. Please see Figure 4.2–2 in the NEFSC EA for specific locations of these incidents up through 2020. TABLE 6—HISTORICAL INTERACTIONS WITH TRAWL GEAR Gear Survey Date Gourock high speed midwater rope trawl. Bottom trawl (4-seam, 3 bridle). Gourock high speed midwater rope trawl. Bottom trawl (4-seam, 3 bridle). Bottom trawl (4-seam, 3 bridle). Atlantic Herring Survey ....... 10/8/2004 NEFSC Standard Bottom Trawl Survey. Atlantic Herring Survey ....... 11/11/2007 Number killed Species 10/11/2009 Short-beaked common dolphin (Western NA stock). Short-beaked common dolphin (Western NA stock). Minke whale ........................ Spring Bottom Trawl Survey 4/4/15 Gray seal ............................. Cooperative NTAP .............. 9/24/19 Total individuals captured (total number of interactions given in parentheses). Number released alive Total 2 0 2 1 0 1 0 11 1 21 0 1 Short-beaked common dolphin (Western NA stock). 1 0 1 Short-beaked common dolphin (4). Minke whale (1) ................... Gray seal (1) ....................... 4 0 4 0 1 1 0 1 1 1 According to the incident report, ‘‘The net’s cod end and whale were brought aboard just enough to undo the cod end and free the whale. It was on deck for about five minutes. While on deck, it was vocalizing and moving its tail up and down. The whale swam away upon release and appeared to be fine. Estimated length was 19 feet.’’ The NEFSC later classified this incidental take as a serious injury using NMFS criteria for such determinations published in January 2012 (Cole and Henry, 2013). 2 The NEFSC filed an incident report for this incidental take on April 4, 2015. VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2 30104 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules TABLE 7—HISTORICAL INTERACTIONS WITH GILLNET GEAR Gear Survey Date Gillnet ................................... COASTSPAN ...................... Gillnet ................................... NEFOP Observer Gillnet Training Trips. NEFOP Observer Gillnet Training Trips. Number killed Species Total 1 0 1 5/4/2009 Common Bottlenose dolphin (Northern South Carolina Estuarine System stock) 1. Gray seal ............................. 1 0 1 5/4/2009 Harbor porpoise .................. 1 0 1 Total individuals captured (total number of interactions given in parentheses). Bottlenose dolphin (1) ......... 1 0 1 Gray seal (1) ....................... Harbor porpoise (1) ............. 1 1 0 0 1 1 Gillnet ................................... 11/29/2008 Number released alive 1 In 2008, the COASTSPAN gillnet survey caught and killed one common bottlenose dolphin in 2008 while a cooperating institution was conducting the survey in South Carolina. This was the only occurrence of incidental take in these surveys. Although no genetic information is available from this dolphin, based on the location of the event, NMFS retrospectively assigned this mortality to the Northern South Carolina Estuarine System stock in 2015 from the previous classification as the western North Atlantic stock (Waring et al., 2014). TABLE 8—HISTORICAL INTERACTIONS WITH FYKE NET GEAR Gear Survey Fyke Net ............................... Date Maine Estuaries Diadromous Survey. Number killed Species Number released alive 10/25/2010 Harbor seal .......................... 1 0 Total ............................................................................................................ 1 .......................................... 0 1 The NEFSC has no recorded interactions with any gear other than midwater and bottom trawl, gillnet, and fyke net gears. As noted previously in ‘‘Potential Effects of the Specified Activity on Marine Mammals,’’ we anticipate future interactions with the same gear types. In order to use these historical interaction records in a precautionary manner as the basis for the take estimation process, and because we have no specific information to indicate whether any given future interaction might result in M/SI versus Level A harassment, we conservatively assume that all interactions equate to mortality. In order to estimate the potential number of incidents of M/SI take that could occur incidental to the NEFSC’s use of midwater and bottom trawl, gillnet, fyke net, and longline gear in the Atlantic coast region over the five-year period the rule would be effective (2021–2026), we first look at the six species described that have been taken Total 1 historically and then evaluate the potential vulnerability of additional species to these gears. Table 9 shows the average annual captures rate of these six species and the projected five-year totals for this proposed rule, for trawl, gillnet, and fyke net gear. Below we describe how these data were used to estimate future take for these and proxy species which also have the potential to be taken. TABLE 9—AVERAGE RATE OF ANIMAL GEAR INTERACTION FROM 2004–2020 Average rate per year (2004–2020) Gear Species Trawl ........................................................................................... Short-beaked common dolphin .................................................. Minke whale ............................................................................... Gray seal .................................................................................... Common bottlenose dolphin ...................................................... Harbor porpoise ......................................................................... Gray seal .................................................................................... Harbor seal ................................................................................ Gillnet .......................................................................................... Fyke net ...................................................................................... The NEFSC only estimated takes for NEFSC gear that: (1) Had a prior take in the historical record, or (2) by analogy to commercial fishing gear. Further, given the rare events of M/SI in NEFSC fishery research, the NEFSC binned gear into categories (e.g., trawls) rather than partitioning take by gear, as it would VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 result in estimated takes that far exceed the recorded take history. Vulnerability of analogous species to different gear types is informed by the record of interactions by the analogous and reference species with commercial fisheries using gear types similar to those used in research. Furthermore, PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 0.27 0.06 0.06 0.06 0.06 0.06 0.06 when determining the amount of take requested, we make a distinction between analogous species thought to have the same vulnerability for incidental take as the reference species and those analogous species that may have a similar vulnerability. In those cases thought to have the same E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules vulnerability, the request is for the same number per year as the reference species. In those cases thought to have similar vulnerability, the request is less than the reference species. For example, the NEFSC believes the vulnerability of harbor seals to be taken in gillnets is the same as for gray seals (one per year) and thus requests one harbor seal per year (total of 5 over the authorization period). Alternatively, the potential for take of Atlantic white-sided dolphins in gillnets is expected to be similar to harbor porpoise (one per year), and the reduced request relative to this reference species is one Atlantic white sided dolphin over the entire five-year authorization period. The approach outlined here reflects: (1) Concern that some species with which we have not had historical interactions may interact with these gears, (2) acknowledgment of variation between sets, and (3) understanding that many marine mammals are not solitary so if a set results in take, the take could be greater than one animal. In these particular instances, the NEFSC estimates the take of these species to be equal to the maximum interactions per any given set of a reference species historically taken during 2004–2019. Trawls—To estimate the requested taking of analogous species, the NEFSC identified several species in the western North Atlantic Ocean which may have similar vulnerability to research-based trawls as the short-beaked common dolphin. Short-beaked common dolphins were taken in 2004 (two individuals in one trawl set) and in 2019 (one dolphin during a bottom trawl). The NEFSC therefore estimates one take of a short-beaked common dolphin per year over the 5-year period to be precautionary (i.e., five total). On the basis of similar vulnerability of other dolphin species, the NEFSC estimates two potential takes over the five-year authorization period for each of the following species in trawls: Risso’s dolphin, common bottlenose dolphin (offshore and northern coastal migratory stock), Atlantic-white-sided dolphin, white-beaked dolphin, Atlantic spotted dolphin, and harbor porpoise. For these species, we propose to authorize a total taking by M/SI of two individuals over the five-year timespan (Table 10). In light of the low level of interaction and the mitigation measures to specifically reduce interactions with dolphins during COASTSPAN surveys such as hand-checking the gill net every 20 minutes, no takes are requested from the Southern Migratory, Coastal or Estuarine stocks of common bottlenose dolphin. Other dolphin species may VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 have similar vulnerabilities as those listed above but because of the timing and location of NEFSC research activities, the NEFSC concluded that the likelihood for take of these species was low and therefore is not requesting, nor it NMFS proposing to authorize, take for the following species: Pantropical spotted dolphin, striped dolphin, Fraser’s dolphin, rough-toothed dolphin, Clymene dolphin, and spinner dolphin. In 2015, one gray seal was killed during a trawl survey. Similar to other gear, the NEFSC believes that harbor seals have a similar vulnerability for incidental take as gray seals in this type of gear. To be conservative, for the period of this authorization, the NEFSC has requested one take by trawl for harbor seals each year over the five-year authorization period. Thus, for harbor and gray seals, we propose to authorize a total taking by M/SI of five individuals over the five-year timespan for trawl gear (Table 10). Gillnets—To estimate the requested take of analogous species for gillnets, the NEFSC identified several species in the western North Atlantic Ocean which may have similar vulnerability to research-based gillnet surveys as the short-beaked common dolphin—due to similar behaviors and distributions in the survey areas. Gillnet surveys typically occur nearshore in bays and estuaries. One gray seal and one harbor porpoise were caught during a Northeast Fisheries Observer Program training gillnet survey. The NEFSC believes that harbor seals have the same vulnerability to be taken in gillnets as gray seals and therefore estimates five takes of harbor seals in gillnets over the five-year authorization period. For this species, we propose to authorize a total taking by M/SI of five individuals over the fiveyear timespan (see Table 10). Likewise, the NEFSC believes that Atlantic white-sided dolphins and short-beaked common dolphins have a similar vulnerability to be taken in gillnets as harbor porpoise and bottlenose dolphins (Waring et al., 2014) and estimates one take each of Atlantic white-sided dolphin and shortbeaked common dolphin in gillnet gear over the five-year authorization period. For these species, we propose to authorize a total taking by M/SI of one individual (per species) over the fiveyear timespan (Table 10). In 2008, a cooperating institution conducting the COASTSPAN gillnet survey in South Carolina caught and killed one bottlenose dolphin. Despite years of effort since that time, this was the only occurrence of incidental take in PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 30105 these surveys. The survey now imposes strict monitoring and mitigation measures (see sections below on Proposed Mitigation and Proposed Monitoring and Reporting). With regard to common bottlenose dolphins, M/SI takes are only requested for offshore and Northern migratory stocks (10 total over the 5-year period). Given the lack of recent take and the implementation of additional monitoring and mitigation measures, the NEFSC is not requesting, and NMFS is not proposing to authorize, take of bottlenose dolphins belonging to the Southern Coastal Migratory or Estuarine stocks as the NEFSC considers there to be a remote chance of incidentally taking a bottlenose dolphin from the estuarine stocks. However, in the future, if there is a bottlenose dolphin take from the estuarine stocks as confirmed by genetic sampling, the NEFSC will reconsider its take request in consultation and coordination with OPR and the Atlantic Bottlenose Dolphin Take Reduction Team. In 2009, one gray seal was killed during a gillnet survey. Similar to other gear, the NEFSC believes that harbor seals have a similar vulnerability for incidental take as gray seals in this type of gear. To be conservative, for the period of this authorization, the NEFSC has requested one take by gillnet for harbor seals each year over the five-year authorization period. Thus, for harbor and gray seals, we propose to authorize a total taking by M/SI of five individual over the five-year timespan (Table 10). Fyke nets—For fyke nets, the NEFSC believes that gray seals have a similar vulnerability for incidental take as harbor seals which interacted once in a single fyke net set during the past 11 years. However, to be conservative, for the period of this authorization, the NEFSC has requested one take by fyke net for gray seals each year over the fiveyear authorization period. Thus, for gray seals, we propose to authorize a total taking by M/SI of five individual over the five-year timespan (Table 10). Longlines—While the NEFSC has not historically interacted with large whales or other cetaceans in its longline gear, it is well documented that some of these species are taken in commercial longline fisheries. The 2020 List of Fisheries classifies commercial fisheries based on prior interactions with marine mammals. Although the NEFSC used this information to help make an informed decision on the probability of specific cetacean and large whale interactions with longline gear, many other factors were also taken into account (e.g., relative survey effort, survey location, similarity in gear type, E:\FR\FM\04JNP2.SGM 04JNP2 30106 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules animal behavior, prior history of NEFSC interactions with longline gear, etc.). Therefore, there are several species that have been shown to interact with commercial longline fisheries but for which the NEFSC is not requesting take. For example, the NEFSC is not requesting take of large whales, longfinned pilot whales, and short-finned pilot whales in longline gear. Although these species could become entangled in longline gear, the probability of interaction with NEFSC longline gear is extremely low considering a low level of survey effort relative to that of commercial fisheries, the short length of the mainline, and low numbers of hooks used. Based on the amount of fish caught by commercial fisheries versus NEFSC fisheries research, the ‘‘footprint’’ of research effort compared to commercial fisheries is very small. For example, NEFSC uses a shorter mainline length and lower number of hooks relative to that of commercial fisheries. The NEFSC considered previously caught species in analogous commercial fisheries to have a higher probability of take; however, all were not included for potential take by the NEFSC. Additionally, marine mammals have never been caught or entangled in NEFSC longline gear; if interactions occur marine mammals depredate caught fish from the gear but leave the hooks attached and unaltered. They have never been hooked nor had hooks taken off gear during depredation. However, such gear could be considered analogous to potential commercial longline surveys that may be conducted elsewhere (e.g., Garrison, 2007; Roche et al. 2007; Straley et al., 2014). Given that the NEFSC experienced a single interaction of a common dolphin during the effective period of the current LOA to date, the proposed issuance of this amount of take, by species, is reasonably conservative. The estimated take, by M/SI, is identical to that proposed and authorized to the NEFSC for the 2016– 2020 LOA except for take pertaining to the southern migratory coastal stock of bottlenose dolphins. The 2016–2021 LOA authorizes 8 takes from this stock. According to the SAR, during the warm water months of July–August, the stock is presumed to occupy coastal waters north of Cape Lookout, North Carolina, to Assateague, Virginia. North of Cape Hatteras during summer months, there is strong separation between the coastal and offshore morphotypes (Kenney 1990; Garrison et al. 2017a), and the coastal morphotype is nearly completely absent in waters >20 m. However, the NEFSC has determined that because research effort is low in the habitat range of this stock and NEFSC has no documented takes of dolphins belonging to the southern migratory coastal stock, they are not requesting, and NMFS is not proposing to authorize, take. TABLE 10—TOTAL ESTIMATED M/SI DUE TO GEAR INTERACTION IN THE ATLANTIC COAST REGION 5-Year total, gillnet 1 5-Year total, trawl 1 Species Minke whale ......................................................................... Risso’s dolphin ..................................................................... Atlantic white-sided dolphin ................................................. White-beaked dolphin .......................................................... Short-beaked common dolphin ............................................ Atlantic spotted dolphin ........................................................ Common bottlenose dolphin (WNA offshore stock) 1 .......... Common bottlenose dolphin (WNA N. Migratory stock) 1 ... Harbor porpoise ................................................................... Harbor seal .......................................................................... Gray seal .............................................................................. 5 2 2 2 5 2 2 2 2 5 5 5-Year total, longline 1 0 0 1 0 1 0 5 5 5 5 5 5-Year total, fyke net 1 0 1 0 0 1 0 1 1 0 0 0 5-Yr total, all gears 0 0 0 0 0 0 0 0 0 5 5 5 3 3 2 7 2 8 8 7 15 15 1 The NEFSC re-evaluated sampling locations and effort after submission of their LOA application and is not requesting takes for the southern migratory stock of bottlenose dolphins as fishing effort is very low. Estimated Take From Scientific Sonar As described previously, we believe it unlikely that NEFSC use of active acoustic sources is realistically likely to cause Level B harassment of marine mammals. However, per NEFSC request, we conservatively assume that, at worst, Level B harassment may result from exposure to noise from these sources, and we carry forward the analytical approach developed in support of the 2015 rule. At that time, in order to quantify the potential for Level B harassment to occur, NMFS developed an analytical framework considering characteristics of the active acoustic systems, their expected patterns of use, and characteristics of the marine mammal species that may interact with them. The framework incorporated a number of deliberately precautionary, simplifying assumptions, and the resulting exposure estimates, which are VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 presumed here to equate to take by Level B harassment (as defined by the MMPA), may be seen as an overestimate of the potential for such effects to occur as a result of the operation of these systems. Regarding the potential for Level A harassment in the form of permanent threshold shift to occur, the very short duration sounds emitted by these sources reduces the likely level of accumulated energy an animal is exposed to. An individual would have to remain exceptionally close to a sound source for unrealistic lengths of time, suggesting the likelihood of injury occurring is exceedingly small. Potential Level A harassment is therefore not considered further in this analysis. Authorized takes from the use of active acoustic scientific sonar sources (e.g., echosounders) would be by Level B harassment only, in the form of disruption of behavioral patterns for PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 individual marine mammals resulting from exposure to the use of active acoustic sources. Based on the nature of the activity, Level A harassment is neither anticipated nor proposed to be authorized. Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules available (e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the proposed take estimate. Acoustic Thresholds NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). As described in detail for NEFSC and other science centers in previously issued Federal Register notices (e.g., 85 FR 53606, August 28, 2020; 88 FR 27028, May 6, 2020), the use of the sources used by NMFS Science Centers, including NEFSC, do not have the potential to cause Level A harassment; therefore, our discussion is limited to behavioral harassment (Level B harassment). Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 mPa (rms) for continuous (e.g., vibratory piledriving, drilling) and above 160 dB re 1 mPa (rms) for intermittent (e.g., scientific sonar) sources. NEFSC surveys include the use of non-impulsive, intermittent sources and therefore the 160 dB re 1 mPa (rms) threshold is applicable. The operating frequencies of active acoustic systems used by the NEFSC range from 30–333 kHz (see Table 2). Examination of these sources considers operational patterns of use relative to each other, and which sources would have the largest potential impact zone when used simultaneously. NEFSC determined that the EK60, ME70, and DSM 300 sources comprise the total VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 effective exposures relative to linekilometers surveyed (see Section 6.5 of the Application). Acoustic disturbance takes are calculated for these three dominant sources. Of these dominant acoustic sources, only the EK60 can use a frequency within the hearing range of baleen whales (18k Hz). Therefore, for North Atlantic right whales and all other baleen whales, Level B harassment is only expected for exposure to the EK60. The other two dominant sources are outside of their hearing range. The ADCP Ocean Surveyor operates at 75 kHz, which is outside of baleen whale hearing capabilities. Therefore, we would not expect any exposures to these signals to result in behavioral harassment in baleen whales. The assessment paradigm for active acoustic sources used in NEFSC fisheries research is relatively straightforward and has a number of key simple and conservative assumptions. NMFS’ current acoustic guidance requires in most cases that we assume Level B harassment occurs when a marine mammal receives an acoustic signal at or above a simple step-function threshold. Estimating the number of exposures at the specified received level requires several determinations, each of which is described sequentially below: (1) A detailed characterization of the acoustic characteristics of the effective sound source or sources in operation; (2) The operational areas exposed to levels at or above those associated with Level B harassment when these sources are in operation; (3) A method for quantifying the resulting sound fields around these sources; and (4) An estimate of the average density for marine mammal species in each area of operation. Quantifying the spatial and temporal dimension of the sound exposure footprint (or ‘‘swath width’’) of the active acoustic devices in operation on moving vessels and their relationship to the average density of marine mammals enables a quantitative estimate of the number of individuals for which sound levels exceed the relevant threshold for each area. The number of potential incidents of Level B harassment is ultimately estimated as the product of the volume of water ensonified at 160 dB rms or higher and the volumetric density of animals determined from simple assumptions about their vertical stratification in the water column. Specifically, reasonable assumptions based on what is known about diving behavior across different marine mammal species were made to segregate those that predominately remain in the upper 200 m of the water column versus PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 30107 those that regularly dive deeper during foraging and transit. Methods for estimating each of these calculations are described in greater detail in the following sections, along with the simplifying assumptions made, and followed by the take estimates. Sound source characteristics—An initial characterization of the general source parameters for the primary active acoustic sources operated by the NEFSC was conducted, enabling a full assessment of all sound sources used by the NEFSC. This auditing of the active acoustic sources also enabled a determination of the predominant sources that, when operated, would have sound footprints exceeding those from any other simultaneously used sources. These sources were effectively those used directly in acoustic propagation modeling to estimate the zones within which the 160 dB rms received level would occur. Many of these sources can be operated in different modes and with different output parameters. In modeling their potential impact areas, those features among the sources identified in Table 2 (e.g., lowest operating frequency) that would lead to the most precautionary estimate of maximum received level ranges (i.e., largest ensonified area) were used. The effective beam patterns took into account the normal modes in which these sources are typically operated. While these signals are brief and intermittent, a conservative assumption was taken in ignoring the temporal pattern of transmitted pulses in calculating Level B harassment events. Operating characteristics of each of the predominant sound sources were used in the calculation of effective linekilometers and area of exposure for each source in each survey. Calculating effective line-kilometers— As described below, based on the operating parameters for each source type, an estimated volume of water ensonified at or above the 160 dB rms threshold was calculated. In all cases where multiple sources are operated simultaneously, the one with the largest estimated acoustic footprint was considered to be the effective source. Two depth zones were defined for each of the four research areas: 0–200 m and >200 m. Effective line distance and volume ensonified was calculated for each depth strata (0–200 m and >200 m), where appropriate. In some cases, this resulted in different sources being predominant in each depth stratum for all line km (i.e., the total linear distance traveled during acoustic survey operations) when multiple sources were in operation. This was accounted for in estimating overall exposures for species E:\FR\FM\04JNP2.SGM 04JNP2 30108 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules that utilize both depth strata (deep divers). For each ecosystem area, the total number of line km that would be surveyed was determined, as was the relative percentage of surveyed line km associated with each source. The total line-kilometers for each survey, the dominant source, the effective percentages associated with each depth, and the effective total volume ensonified are given below (Table 12). From the sources identified in Table 2, the NEFSC identified six of the eight as having the largest potential impact zones during operations based on their relatively lower output frequency, higher output power, and operational pattern of use: EK60, ME70, DSM 300, ADCP Ocean Surveyor, Simrad EQ50, and Netmind (80 FR 39542). Further examination of these six sources considers operational patterns of use relative to each other, and which sources would have the largest potential impact zone when used simultaneously. NEFSC determined that the EK60, ME 70, and DSM 300 sources comprise the total effective exposures relative to linekilometers surveyed acoustic disturbance takes are calculated for these three dominant sources. Of these dominant acoustic sources, only the EK 60 can use a frequency within the hearing range of baleen whales (18k Hz). Therefore, for NARW and all other baleen whales, Level B harassment is only expected for exposure to the EK60. The other two dominant sources are outside of their hearing range. Calculating volume of water ensonified—The cross-sectional area of water ensonified to a 160 dB rms received level was calculated using a simple spherical spreading model of sound propagation loss (20 log R) such that there would be 60 dB of attenuation over 1,000 m. Spherical spreading is a reasonable assumption even in relatively shallow waters since, taking into account the beam angle, the reflected energy from the seafloor will be much weaker than the direct source and the volume influenced by the reflected acoustic energy would be much smaller over the relatively short ranges involved. We also accounted for the frequency-dependent absorption coefficient and beam pattern of these sound sources, which is generally highly directional. The lowest frequency was used for systems that are operated over a range of frequencies. The vertical extent of this area is calculated for two depth strata. Following the determination of effective sound exposure area for transmissions considered in two dimensions (Table 11), the next step was to determine the effective volume of water ensonified at or above 160 dB rms for the entirety of each survey. For each of the three predominant sound sources, the volume of water ensonified is estimated as the athwartship crosssectional area (in square kilometers) of sound at or above 160 dB rms multiplied by the total distance traveled by the ship. Where different sources operating simultaneously would be predominant in each different depth strata, the resulting cross-sectional area calculated took this into account. Specifically, for shallow-diving species this cross-sectional area was determined for whichever was predominant in the shallow stratum, whereas for 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. Volumetric densities are presented in Table 12. TABLE 11—EFFECTIVE EXPOSURE AREAS FOR PREDOMINANT ACOUSTIC SOURCES ACROSS TWO DEPTH STRATA Effective exposure area: Sea surface to 200 m depth (km2) Active acoustic system EK60 ................................................................................................................................................ ME70 ................................................................................................................................................ DSM300 ........................................................................................................................................... Marine Mammal Density As described in the 2015 proposed rule (80 FR 39542), marine mammals were categorized into two generalized depth strata: Surface-associated (0–200 m) or deep-diving (0 to >200 m). These depth strata are based on reasonable assumptions of behavior (Reynolds III and Rommell 1999). Animals in the shallow-diving strata were assumed to spend a majority of their lives (>75 percent) at depths of 200 m or shallower. For shallow-diving species, the volumetric density is the area density divided by 0.2 km (i.e., 200 m). The animal’s volumetric density and exposure to sound is limited by this depth boundary. Species in the deeper diving strata were assumed to regularly dive deeper than 200 m and spend significant time at depth. For deeper diving species, the volumetric density is calculated as the Effective exposure area: Sea surface to depth >200 m (km2) 0.0142 0.0201 0.0004 0.1411 0.0201 0.0004 area density divided by a nominal value of 0.5 km (i.e., 500 m), consistent with the approach used in the 2016 Final Rule (81 FR 53061). Where applicable, both LME and offshore volumetric densities are provided. As described in Section 6.5 of NEFSC’s application, level of effort and acoustic gear types used by NEFSC differ in these areas and takes are calculated for each area (LME and offshore). TABLE 12—MARINE MAMMAL AND VOLUMETRIC DENSITY IN THE ENSONFIED AREAS Dive profile/vertical habitat Common name 0–200 m I >200 m LME area density (per km2) 1 2 LME volumetric density (per km3) 3 Offshore ensity (per km2) 2 4 Offshore volumetric density (per km3) 5 Cetaceans NARW 6 ........................................................................ Humpback whale ......................................................... Fin whale ...................................................................... VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 X X X Frm 00030 .............. .............. .............. Fmt 4701 Sfmt 4702 0.0030 0.0016 0.0048 0.0150 0.00800 0.02400 E:\FR\FM\04JNP2.SGM 04JNP2 0 0 0.00005 0 0 0.00025 30109 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules TABLE 12—MARINE MAMMAL AND VOLUMETRIC DENSITY IN THE ENSONFIED AREAS—Continued Dive profile/vertical habitat Common name Sei whale ..................................................................... Minke whale ................................................................. Blue whale ................................................................... Sperm whale ................................................................ Dwarf sperm whale ...................................................... Pygmy sperm whale .................................................... Killer Whale .................................................................. Pygmy killer whale ....................................................... Northern bottlenose whale ........................................... Cuvier’s beaked whale ................................................. Mesoplodon beaked whales ........................................ Melon-headed whale .................................................... Risso’s dolphin ............................................................. Long-finned pilot whale ................................................ Short-finned pilot whale ............................................... Atlantic white-sided dolphin ......................................... White-beaked dolphin .................................................. Short-beaked common dolphin .................................... Atlantic spotted dolphin ................................................ Pantropical spotted dolphin ......................................... Striped dolphin ............................................................. Fraser’s dolphin ........................................................... Rough toothed dolphin ................................................. Clymene dolphin .......................................................... Spinner dolphin ............................................................ Common bottlenose dolphin offshore stock ................ Common bottlenose dolphin coastal stocks ................ Harbor porpoise ........................................................... 0–200 m >200 m X X X .............. .............. .............. X X .............. .............. .............. X X .............. .............. X X X X X X X X X X X X X .............. .............. .............. X X X .............. .............. X X X .............. .............. X X .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. LME area density (per km2) 1 2 LME volumetric density (per km3) 3 Offshore volumetric density (per km3) 5 Offshore ensity (per km2) 2 4 0.0008 0.002 0.000009 0 0 0 0.000009 0.000009 0 0 0 0 0.0020 0.0220 0.0220 0.0453 0.00003 0.0891 0.0013 0 0 0 0.0005 0.0032 0 0 0.1359 0.0403 0.00400 0.01000 0.00005 0 0 0 0.00005 0.00005 0 0 0 0 0.01000 0.11000 0.11000 0.22650 0.00015 0.44550 0.00650 0 0 0 0.00250 0.01600 0 0 0.6795 0.20150 0 0 0.000009 0.0056 0.005 0.005 0.000009 0.000009 0.00009 0.0062 0.0046 0.0010 0.0128 0.0220 0.0220 0 0 0 0.0241 0.0015 0.0614 0.0004 0.0010 0 0.0002 0.1615 0 0 0 0 0.00005 0.01120 0.01000 0.01000 0.00005 0.00005 0.00018 0.01240 0.00920 0.00500 0.06400 0.04400 0.04400 0 0 0 0.12050 0.00750 0.30700 0.000200 0.000200 0 0.00100 0.3230 0 0 0.2844 0.0939 1.4220 0.4695 0 0 0 0 Pinnipeds Harbor Seal .................................................................. Gray Seal ..................................................................... X X .............. .............. 1 LME is the area in shore of the 200 m depth contour. Unless otherwise stated Roberts, Best et al. (2016). volumetric density is the LME area density divided by 0.2 km. 4 Offshore is the area offshore of the 200 m depth contour. 5 Offshore volumetric density is the offshore area density divided by 0.2 km or 0.5 km for shallow or deep diving species or 0.5 km for deep diving species. 6 Density from Roberts, Schick et al. (2020). 2 Source: 3 LME Using Area of Ensonification and Volumetric Density To Estimate Exposures Estimates of potential incidents of Level B harassment (i.e., potential exposure to levels of sound at or exceeding the 160 dB rms threshold) are then calculated by using (1) the combined results from output characteristics of each source and identification of the predominant sources in terms of acoustic output; (2) their relative annual usage patterns for each operational area; (3) a 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 VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 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 stratumspecific exposure estimates are the product of these ensonified volumes and the species-specific volumetric densities (Table 12). The general take estimate equation for each source in each depth statrum is density * (ensonified volume * line kms). The humpback whale and exposure to sound from the EK 60 can be used to demonstrate the calculation: 1. EK60 ensonified volume; 0–200 m: 0.0142 km2 * 16058.8 km = 228.03 km3 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 2. Estimated exposures to sound ≥160 dB rms; humpback whale; EK60, LME region: (0.008 humpback whales/km3 * 228.03 km3 = 1.8 estimated humpback exposures to SPLs ≥160 dB rms resulting from use of the EK60 in the 0–200 m depth stratum. Similar calculations were conducted for the ME 70 and DSM300 for each animal in the LME region, with the exception of baleen whales, as these sound sources are outside of their hearing range. Totals in Tables 13 and 14 represent the total take of marine mammals, by species, across all relevant surveys and sources rounded up to the nearest whole number. BILLING CODE 3510–22–P E:\FR\FM\04JNP2.SGM 04JNP2 30110 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules Table 13. Marine Mammal Level B Harassment Take Estimates - LME. ~ ;1: ~ 5 ·c .... "Cl ~e .. ,g! ~ Common Name >i!t Vertical Habitat (shallow vs. deep divers) e = = ~ Estimated Acoustic Takes in 0-200 m depth stratum ME70 DSM300 -= ~ g. ""' ~ = =-~ ~ ""'~ ~ ~ ~ Ii I~ -; ... -;.... -=.... = .... ~ ~ .... ""'·c E,-1 ~ EK60 ~ ...= t ; e = = r-:1 = "Cl Total "Cl ~ ~ ~~ ~ ~ ~ ~ C. = Cetaceans NARW 0.015 X 3.4 0 0 3.4 4 20 Humpback whale 0.008 X 1.8 0 0 1.8 2 10 Fin whale 0.024 X 5.5 0 0 5.5 6 30 Sei whale 0.004 X 0.9 0 0 0.9 1 5 Minke whale 0.010 X 2.3 0 0 2.3 3 15 Blue whale 0.00005 X 0.01 0 0 0.01 1 5 Killer Whale 0.00005 X 0.01 0.033 0.009 0.053 1 5 Pygmy killer whale 0.00005 X 0.01 0.033 0.009 0.053 1 5 0.010 X 2.3 7.4 2.0 11.7 12 60 0.110 X X 25.1 81.1 22.2 128.4 129 645 0.110 X X 25.1 81.1 22.2 128.4 129 645 0.227 X 51.6 167.1 45.7 264.4 265 1,325 0.00015 X 0.034 0.111 0.030 0.175 58 290 0.446 X 101.6 328.6 89.8 520 520 2,600 0.007 X 1.5 4.8 1.3 7.6 8 40 0.003 X 0.6 1.8 0.5 2.9 3 15 0.016 X 3.6 11.8 3.2 18.7 19 95 0.679 X 154.9 501.2 137 793.1 794 3,970 0.2015 X 45.9 148.6 40.6 235.2 236 1,180 Risso's dolphin Long-finned pilot whale Short-finned pilot whale Atlantic whitesided dolphin White-beaked dolphin1 Short-beaked common dolphin Atlantic spotted dolphin Rough toothed dolphin Clymene dolphin Common bottlenose dolphin2 Harbor Porpoise Pinnipeds Harbor Seal 1.422 X 324.3 1048.9 286.7 1659.8 1660 8,300 Gray Seal 0.469 X 107.1 346.3 94.7 548.02 549 2,745 1 For the period 2016 - 2019, Level B takes for this species were reported as 29, 23, and 37 for each year, respectively. trherefore, the take request has been adjusted to account for potential groups that may occur. VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4725 E:\FR\FM\04JNP2.SGM 04JNP2 EP04JN21.001</GPH> ~ The NEFSC re-evaluated active acoustic smvey effort after submission of their LOA application and is not wequesting takes for tlle soutllem migratory stock ofbottlenose dolphins as no active acoustic sources would be used in habitat overlaooing with Uris stock. 30111 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules Table 14. Marine Mammal Level B Harassment Take Estimates-Offshore. ..,,-._ -~~ ... ;!, e ;<.::: -== Common Name Q,j .... 0 17.> Q,j >-= Vertical Habitat (shallow vs. deep divers) >200 >200 m m Estimated Acoustic Takes in 0-200m depth stratum 1 EK60 ME70 Estimated Acoustic Takes >200m depth stratum2 Total EK60 :r. Q,j ~ :r. 0 Q,j ~ Q,-= 17.> 17.> j!:::: =O 17.> 0 j -e -e ·c0 Q,j Q, :r. = = Q,j ~i~ ....= -~~ -=· = ~ 17.> -0 Q,j Q, ~ 17.> ~ ~ O"in Q,j Q,j p::: ;S Fin whale 0.00025 X 0 0.026 0.026 0 1 5 Blue whale 0.00005 X 0 0.005 0.005 0 1 5 Sperm whale Dwarf sperm whale Pygmy sperm whale Killer Whale Pygmy killer whale Northern bottlenose whale Cuvier's beaked whale Mesoplodon beaked whales Melon-headed whale 0.0112 X 0.3 1.2 1.5 2.8 5 25 0.01 X 0.3 1.0 1.3 2.5 4 20 0.01 X 0.3 1.0 1.3 2.5 4 20 0.00005 X 0.001 0.005 0.006 0 1 5 0.00005 X 0.001 0.005 0.006 0 1 5 0.00018 X 0.01 0.02 0.02 0.05 1 5 0.0124 X 0.3 1.3 1.6 3.1 5 25 0.0092 X 0.3 1.0 1.2 2.3 4 20 Risso's dolphin Long-finned pilot whale Short-finned pilot whale Atlantic spotted dolphin Pantropical spotted dolphin 0.005 X 0.1 0.5 0.7 0 1 5 0.064 X 1.8 6.6 8.4 0 9 45 0.044 X 1.2 4.6 5.8 11.1 17 85 0.044 X 1.2 4.6 5.8 11.1 17 85 0.1205 X 3.4 12.5 15.9 0 16 80 0.0075 X 0.2 0.8 1.0 0 1 5 Striped dolphin 0.307 X 8.7 31.8 40.4 0 41 205 Fraser's dolphin Rough toothed dolphin Spinner dolphin 0.002 X 0.1 0.2 0.3 0 1 5 0.005 X 0.14 0.52 0.66 0 1 5 0.001 X 0.0 0.1 0.1 0 1 5 0.3230 X 9.1 33.4 42.5 0 43 215 Common bottlenose dolphin3 BILLING CODE 3510–22–C Estimated Take Due to Physical Disturbance Estimated take due to physical disturbance could potentially occur in the Penobscot River Estuary as a result VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 of the unintentional approach of NEFSC vessels to pinnipeds hauled out on ledges. The NEFSC uses three gear types (fyke nets, rotary screw traps, and Mamou shrimp trawl) to monitor fish PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 communities in the Penobscot River Estuary. The NEFSC conducts the annual surveys over specific sampling periods which could use any gear type: Mamou trawling is conducted yearround; fyke net surveys are conducted E:\FR\FM\04JNP2.SGM 04JNP2 EP04JN21.002</GPH> 1DSM300 not used in offshore surveys. ~Only EK60 used for the >200 m depth stratum. ~Offshore stock. 30112 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules April–November; and rotary screw trap surveys from April–June. We anticipate that trawl and fyke net surveys may disturb harbor seals and gray seals hauled out on tidal ledges through physical presence of researchers. The NEFSC conducts these surveys in upper Penobscot Bay above Fort Point Ledge where there is only one minor seal ledge (Odum Ledge) used by approximately 50 harbor seals (i.e., based on a June 2001 survey). In 2017, only 20 seals were observed in the water during the Penobscot Bay surveys (NEFSC 2018) as described below. Although one cannot assume that the number of seals using this region is stable over the April–November survey period; use of this area by seals likely lower in spring and autumn. There were no observations of gray seals in the 2001 survey, but recent anecdotal information suggests that a few gray seals may share the haulout site. These fisheries research activities do not entail intentional approaches to seals on ledges (i.e., boats avoid close approach to tidal ledges and no gear is deployed near the tidal ledges); only behavioral disturbance incidental to small boat activities is anticipated. It is likely that some pinnipeds on the ledges would move or flush from the haulout into the water in response to the presence or sound of NEFSC survey vessels. Behavioral responses may be considered according to the scale shown in Table 15. We consider responses corresponding to Levels 2–3 to constitute Level B harassment. TABLE 15—SEAL RESPONSE TO DISTURBANCE Level Type of response Definition 1 ........................ Alert ............... 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 two research projects would involve the physical presence of researchers that may result in Level B incidental harassment of pinnipeds on haulouts. These surveys would occur in Penobscot Bay. Seals observed by NEFSC researchers on haulouts and in adjacent waters from 2017 through 2020 are presented in Table 16. The 2016 final rule (81 FR 53061) estimated that all hauled out seals could be disturbed by passing research skiffs. This was a conservative assumption given that only 20 seals were observed in the water during the actual 2017 Penobscot Bay surveys (NEFSC 2018b), and researchers have estimated that only about 10 percent of hauled out seals had been visibly disturbed in the past (NMFS 2016). Thus, for this proposed rule, it is assumed that 10 percent of the animals hauled out could be flushed into the water and taken. The resulting requested take is estimated based on the number of days per year the activity might take place, times the number of seals potentially affected (10 percent of the number hauled). Table 17 provides the estimated annual and 5-year takes of harbor and gray seals due to behavioral harassment during surveys in the lower estuary of the Penobscot River. TABLE 16—SEALS OBSERVED IN PENOBSCOT BAY DURING HYDROACOUSTIC SURVEYS FROM 2017–2020 2017 Species Count on haulout Harbor seals ............................................. Gray seals ................................................ 2018 Count in water 242 2 Count on haulout 65 17 2019 Count in water 401 11 Count on haulout 52 2 Count in water 330 33 50 29 TABLE 17—ESTIMATED TAKE, BY LEVEL B HARASSMENT, OF PINNIPEDS DURING PENOBSCOT RIVER SURVEYS Estimated number of seals hauled out1 Common name Harbor seals ....................................... Gray seals .......................................... 400 30 Summary of Estimated Incidental Take Here we provide summary tables detailing the total proposed incidental VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Estimated number of seals potentially disturbed per day2 Estimated annual instances of harassment Fyke net 100 DAS 40 3 Mamou shrimp trawl 12 DAS 4,000 300 take authorization on an annual basis for the NEFSC in the Atlantic coast region, as well as other information PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 480 36 Total 5-Year total harassment takes requested all gears 4,480 336 relevant to the negligible impact analyses. E:\FR\FM\04JNP2.SGM 04JNP2 22,400 1,680 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules 30113 TABLE 18—TOTAL PROPOSED M/SI AND LEVEL B HARASSMENT OVER 5 YEARS [2021–2026] 5-Year total M/SI proposed take authorization Common name NARW .................................................................................. Humpback whale ................................................................. Fin whale .............................................................................. Sei whale ............................................................................. Minke whale ......................................................................... Blue whale ........................................................................... Sperm whale ........................................................................ Dwarf sperm whale .............................................................. Pygmy sperm whale ............................................................ Killer Whale .......................................................................... Pygmy killer whale ............................................................... Northern bottlenose whale ................................................... Cuvier’s beaked whale ......................................................... Mesoplodon beaked whale .................................................. Melon-headed whale ............................................................ Risso’s dolphin ..................................................................... Long-finned pilot whale ........................................................ Short-finned pilot whale ....................................................... Atlantic white-sided dolphin ................................................. White-beaked common dolphin ........................................... Short-beaked common dolphin ............................................ Atlantic spotted dolphin ........................................................ Pantropical spotted dolphin ................................................. Striped dolphin ..................................................................... Fraser’s dolphin ................................................................... Rough toothed dolphin ......................................................... Clymene dolphin .................................................................. Spinner dolphin .................................................................... Bottlenose dolphin1 .............................................................. Harbor Porpoise ................................................................... Harbor seals 2 ...................................................................... 0 0 0 0 5 0 0 0 0 0 0 0 0 0 0 3 0 0 3 2 7 2 0 0 0 0 0 0 1 16 7 15 Gray seals 2 .......................................................................... 15 Annual Level B take LME Total (% of population) Offshore 4 2 6 1 3 1 0 0 0 1 1 0 0 0 0 12 129 129 265 1 520 8 0 0 0 3 19 0 794 236 1,660 4,480 549 336 4 2 7 1 3 2 5 4 4 2 2 1 5 4 1 21 146 146 281 1 520 24 1 41 1 Total 5-yr Level B take 2021–2026 0 0 1 0 0 1 5 4 4 1 1 1 5 4 1 9 17 17 0 0 0 16 1 41 1 1 0 5 43 0 0 (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) (<1) 4 (3) 19 (<1) 5 (<1) 837 (12) 236 (<1) 6,140 (8.1) 20 10 35 5 15 10 25 20 20 10 10 5 25 20 5 105 730 730 1,325 5 2,600 120 5 205 5 20 95 25 4,185 1,180 30,700 0 885 (3.2) 4,425 1 Eight 2 For M/SI takes each from the offshore and northern migratory coastal stocks, over the 5-year period. Level B takes, the first number is disturbance due to acoustic sources, the second is physical disturbance due to surveys in Penobscot Bay. Proposed Mitigation In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Mitigation for Marine Mammals and Their Habitat The NEFSC has invested significant time and effort in identifying technologies, practices, and equipment to minimize the impact of the proposed activities on marine mammal species and stocks and their habitat. The mitigation measures discussed here have been determined to be both effective and practicable and, in some cases, have already been implemented by the NEFSC. In addition, while not currently being investigated, any future E:\FR\FM\04JNP2.SGM 04JNP2 30114 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules potentially effective and practicable gear modification mitigation measures are part of the adaptive management strategy included in this rule. General Measures Visual Monitoring—Effective monitoring is a key step in implementing mitigation measures and is achieved through regular marine mammal watches. Marine mammal watches are a standard part of conducting NEFSC fisheries research activities, particularly those activities that use gears that are known to or potentially interact with marine mammals. Marine mammal watches and monitoring occur during daylight hours prior to deployment of gear (e.g., trawls, longline gear), and they continue until gear is brought back on board. If marine mammals are sighted in the area within 15 minutes prior to deployment of gear and are considered to be at risk of interaction with the research gear, then the sampling station is either moved or canceled or the activity is suspended until there are no sightings for 15 minutes within 1nm of sampling location. On smaller vessels, the Chief Scientist (CS) and the vessel operator are typically those looking for marine mammals and other protected species. When marine mammal researchers are on board (distinct from marine mammal observers dedicated to monitoring for potential gear interactions), they will record the estimated species and numbers of animals present and their behavior. If marine mammal researchers are not on board or available, then the CS in cooperation with the vessel operator will monitor for marine mammals and provide training as practical to bridge crew and other crew to observe and record such information. Coordination and Communication— When NEFSC survey effort is conducted aboard NOAA-owned vessels, there are both vessel officers and crew and a scientific party. Vessel officers and crew are not composed of NEFSC staff but are employees of NOAA’s Office of Marine and Aviation Operations (OMAO), which is responsible for the management and operation of NOAA fleet ships and aircraft and is composed of uniformed officers of the NOAA Commissioned Corps as well as civilians. The ship’s officers and crew provide mission support and assistance to embarked scientists, and the vessel’s Commanding Officer (CO) has ultimate responsibility for vessel and passenger safety and, therefore, decision authority regarding the implementation of mitigation measures. When NEFSC survey effort is conducted aboard cooperative platforms (i.e., non-NOAA VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 vessels), ultimate responsibility and decision authority again rests with nonNEFSC 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 NEFSC survey effort is composed, in part or whole, of NEFSC staff and is led by a CS. Therefore, because the NEFSC—not OMAO or any other entity that may have authority over survey platforms used by NEFSC—is the applicant to whom any incidental take authorization issued under the authority of these proposed regulations would be issued, we require that the NEFSC take all necessary measures to coordinate and communicate in advance of each specific survey with OMAO, or other relevant parties, to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant 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. NEFSC will coordinate and conduct briefings at the outset of each survey and as necessary between the ship’s crew (CO/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. The CS will be responsible for coordination with the Officer on Deck (OOD; or equivalent on non-NOAA platforms) to ensure that requirements, procedures, and decisionmaking processes are understood and properly implemented. The NEFSC will coordinate with the local Northeast Regional Stranding Coordinator and the NMFS Stranding Coordinator for any unusual protected species behavior and any stranding, beached live/dead, or floating protected species that are encountered during field research activities. If a large whale is alive and entangled in fishing gear, the vessel will immediately call the U.S. Coast Guard at VHF Ch. 16 and/or the appropriate Marine Mammal Health and Stranding Response Network for PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 instructions. All entanglements (live or dead) and vessel strikes must be reported immediately to the NOAA Fisheries Marine Mammal Stranding Hotline at 888–755–6622. In addition, any entanglement or vessel strike must be reported to the NMFS Protected Species Incidental Take database (PSIT) within 48 hours of the event happening (see Proposed Monitoring and Reporting). Vessel Speed Limits and Course Alteration When NEFSC research vessels are actively sampling, cruise speeds are less than 5 kts, typically 2–4 kts, a speed at which the probability of collision and serious injury of large whales is de minimus. However, transit speed between active sampling stations will range from 10–12 kts, except in areas where vessel speeds are regulated to lower speeds. On 9 December 2013, NMFS published a ‘‘Final rule to remove sunset provision of the Final Rule Implementing Vessel Speed Restrictions to Reduce the Threat of Ship Collisions with NARWs’’ (78 FR 73726). The 2013 final rule continued the vessel speed restrictions to reduce the threat of ship collisions with NARWs that were originally published in a final rule on 10 October 2008 (73 FR 60173). The rule requires that vessels 65 feet and greater in length travel at 10 knots or less near key port entrances and in certain areas of right whale aggregation along the U.S. eastern seaboard, known as ‘‘Seasonal Management Areas’’. The spatial and temporal locations of SMAs from Maine to Florida can be found at: https:// www.fisheries.noaa.gov/national/ endangered-species-conservation/ reducing-vessel-strikes-north-atlanticright-whales#vessel-speed-restrictions. In addition, Right Whale Slow Zones is a program that notifies vessel operators of areas where maintaining speeds of 10 knots or less can help protect right whales from vessel collisions. Under this program, NOAA Fisheries provides maps and coordinates to vessel operators indicating areas where right whales have been detected. Mariners are encouraged to avoid these areas or reduce speeds to 10 knots or less while transiting through these areas for 15 days. Right Whale Slow Zones are established around areas where right whales have been recently seen or heard. These areas are identical to Dynamic Management Areas (DMA) when triggered by right whale visual sightings, but they will also be established when right whale detections are confirmed from acoustic receivers. All NEFSC vessels over 65 ft will abide E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules by all speed and course restrictions in SMAs and DMAs. Prior to and during research surveys, NEFSC will maintain awareness if right whales have been detected in transit or fishing areas. Handling Procedures Handling procedures are those taken to return a live animal to the sea or process a dead animal. The NEFSC will implement a number of handling protocols to minimize potential harm to marine mammals that are incidentally taken during the course of fisheries research activities. In general, protocols have already been prepared for use on commercial fishing vessels. Although commercial fisheries take larger quantities of marine mammals than fisheries research, the nature of such takes by entanglement or capture are similar. Therefore, the NEFSC would adopt commercial fishery disentanglement and release protocols (summarized below), which should increase post-release survival. Handling or disentangling marine mammals carries inherent safety risks, and using best professional judgment and ensuring human safety is paramount. Captured or entangled live or injured marine mammals are released from research gear and returned to the water as soon as possible with no gear or as little gear remaining on the animal as possible. Animals are released without removing them from the water if possible, and data collection is conducted in such a manner as not to delay release of the animal(s) or endanger the crew. NEFSC is responsible for training NEFSC and partner affiliates on how to identify different species; handle and bring marine mammals aboard a vessel; assess the level of consciousness; remove fishing gear; and return marine mammals to water. Human safety is always the paramount concern. Move-On Rule For all research surveys using gear that has the potential to hook or entangle a marine mammal, the NEFSC must implement move-on rule mitigation protocol upon observation of any marine mammal other than dolphins and porpoises attracted to the vessel (see specific gear types below for marine mammal monitoring details). Specifically, if one or more marine mammals (other than dolphins and porpoises) are observed near the sampling area 15 minutes prior to setting gear and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, NEFSC must either remain VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 onsite or move on to another sampling location. If remaining onsite, the set must be delayed until the animal(s) depart or appear to no longer be at risk of interacting with the vessel or gear. If gear deployment or retrieval is suspended due to protected species presence, resume only after there are no sightings for 15 minutes within 1nm of sampling location. At such time, the NEFSC may deploy gear. The NEFSC must use best professional judgment, in making decisions related to deploying gear. Trawl Surveys (Beam, Mid-Water, and Bottom Trawls) The NEFSC deploys trawl nets in all layers of the water column. For all beam, mid-water, and bottom trawl, the NEFSC will initiate visual observation for protected species no less than 15 minutes prior to gear deployment. NEFSC will scan the surrounding waters with the naked eye and rangefinding binoculars and will continue visual monitoring while gear is deployed. During nighttime operations, NEFSC will observe with the naked eye and any available vessel lighting. If protected species are sighted within 15 minutes before setting gear, the OOD may determine whether to implement the ‘‘move-on’’ rule and transit to a different section of the sampling area. Trawl gear will not be deployed if protected species are sighted near the ship unless there is no risk of interaction as determined by the OOD or CS. If, after moving on, protected species are still visible from the vessel and appear at risk, the OOD may decide to move again, skip the station, or wait until the marine mammal(s) leave the area and/or are considered no longer at risk. If gear deployment or retrieval is suspended due to protected species presence, fishing may commence after there are no sightings for 15 minutes within 1nm of sampling location. If deploying bongo plankton or other small net prior to trawl gear, NEFSC will continue visual observations until trawl gear is ready to be deployed. NEFSC trawl surveys will follow the standard tow durations of no more than 30 minutes at target depth for distances less than 3 nautical miles (nm). The exceptions to the 30-minute tow duration are the Atlantic Herring Acoustic Pelagic Trawl Survey and the Deepwater Biodiversity Survey where total time in the water (deployment, fishing, and haul-back) is 40 to 60 minutes and 180 minutes, respectively. Trawl tow distances will be not more than 3 nmi to reduce the likelihood of incidentally taking marine mammals. Typical tow distances are 1–2 nmi, PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 30115 depending on the survey and trawl speed. Bottom trawl tows will be made in either straight lines or following depth contours, whereas other tows targeting fish aggregations and deepwater biodiversity tows may be made along oceanographic or bathymetric features. In all cases, sharp course changes will be avoided in all surveys. In many cases, trawl operations will be the first activity undertaken upon arrival at a new station, in order to reduce the opportunity to attract marine mammals to the vessel. However, in some cases it will be necessary to conduct plankton tows prior to deploying trawl gear in order to avoid trawling through extremely high densities of jellies and similar taxa that are numerous enough to severely damage trawl gear. Once the trawl net is in the water, observations will continue around the vessel to maintain a lookout for the presence of marine mammals. If marine mammals are sighted before the gear is fully retrieved, resume only after there are no sightings for 15 minutes within 1 nmi of the sampling location. The OOD may also use the most appropriate response to avoid incidental take in consultation with the CS and other experienced crew as necessary. This judgment will be based on his/her past experience operating gears around marine mammals and NEFSC training sessions that will facilitate dissemination of Chief Scientist. Captain expertise operating in these situations (e.g., factors that contribute to marine mammal gear interactions and those that aid in successfully avoiding these events). These judgments take into consideration the species, numbers, and behavior of the animals, the status of the trawl net operation (net opening, depth, and distance from the stern), the time it would take to retrieve the net, and safety considerations for changing speed or course. For instance, a whale transiting through the area off in the distance might only require a short move from the designated station while a pod of dolphins gathered around the vessel may require a longer move from the station or possibly cancellation if they follow the vessel. It may sometimes be safer to continue trawling until the marine mammals have lost interest or transited through the area before beginning haulback operations. In other situations, swift retrieval of the net may be the best course of action. If trawling is delayed because of protected species presence, trawl operations only resume when the animals have no longer been sighted or are no longer at risk. In any case, no gear will be deployed if marine mammals or other protected species E:\FR\FM\04JNP2.SGM 04JNP2 30116 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules have been sighted that may be a risk of interaction with gear. Gear will be retrieved immediately if marine mammals are believed to be at risk of entanglement or observed as being entangled. The acoustical cues generated during haulback may attract marine mammals. The NEFSC will continue monitoring for the presence of marine mammals during haulback. Care will be taken when emptying the trawl to avoid damage to any marine mammals that may be caught in the gear but are not visible upon retrieval. NEFSC will open the codend of the net close to the deck/ sorting area to avoid damage to animals that may be caught in gear. The gear will be emptied as quickly as possible after retrieval in order to determine whether or not marine mammals, or any other protected species, are present. Gillnet Surveys The NEFSC will limit gillnet soak times to the least amount of time required to conduct sampling. Gillnet research will only be conducted during daylight hours. NEFSC will conduct marine mammal monitoring beginning 15 minutes prior to deploying the gear and continue until gear is back on deck. For the COASTSPAN gillnet surveys, NEFSC must actively monitor for potential bottlenose dolphin entanglements by hand-checking the gillnet every 30 minutes or if a disturbance in the net is observed (even if marine mammals are not observed). NEFSC will pull gear immediately if disturbance in the nets is observed. All gillnets will be designed with minimal net slack and excess floating and trailing lines will be removed. NEFSC will set only new of fully repaired gill nets thereby eliminating holes, and modify nets to avoid large vertical gaps between float line and net as well as lead line and net when set. If a marine mammal is sighted during approach to a station or prior to deploying gear, nets would not be deployed until the animal has left the area, is on a path away from where the net would be set, or has not been resighted within 15 minutes. Alternatively, the research team may move the vessel to an area clear of marine mammals. If the vessel moves, the 15 minute observation period is repeated. Monitoring by all available crew would continue while the net is being deployed, during the soak, and during haulback. If protected species are not sighted during the 15 minute observation period, the gear may be set. Waters surrounding the net and the net itself would be continuously monitored during the soak. If protected species are VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 sighted during the soak and appear to be at risk of interaction with the gear, then the gear is pulled immediately. If fishing operations are halted, operations resume when animal(s) have not been sighted within 15 minutes or are determined to no longer be at risk. In other instances, the station is moved or cancelled. If any disturbance in the gear is observed in the gear, the net will be immediately checked or pulled. The NEFSC will clean gear prior and during deployment. The catch will be emptied as quickly as possible. On Observer Training cruises, acoustic pingers and weak links are used on all gillnets consistent with the regulations and TRPs for commercial fisheries. All NEFOP protocols are followed as per current NEFOP Observer Manual. Longline Surveys Similar to other surveys, NEFSC will deploy longline gear as soon as practicable upon arrival on station. They will initiate visual observations for marine mammals no less than 15 minutes prior to deployment and continue until gear is back on deck. Observers will scan surrounding waters with the naked eye and binoculars (or monocular). Monitoring, albeit limited visibility, will occur during nighttime surveys using the naked eye and available vessel lighting. If marine mammals are sighted within 1nmi of the station within 15 minutes before setting gear, NEFSC will suspend gear deployment until the animals have moved on a path away from the station or implement the move-on rule. If gear deployment or retrieval is suspended due to presence of marine mammals, resume operations only after there are no sightings for at least 15 minutes within 1nmi of sampling location. In no case will longlines be deployed if animals are considered at-risk of interaction. When visibility allows, the OOD, CS, and crew standing watch will conduct set checks every 15 minutes to look for hooked, trapped, or entangled marine mammals. In addition, chumming is prohibited. Fyke Net Surveys NEFSC will conduct monitoring of marine mammals 15 minutes prior to setting gear and continue until gear is back on deck. If marine mammals are observed within 100 m of the station, NEFSC will delay setting the gear until the marine mammal(s) has moved past and on a path away from the station or implement the move-on rule. Similar to other gear measures, fyke nets will not be deployed in the animal(s) is deemed at-risk of interaction. If marine mammals are observed during sampling, PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 gear will be pulled if the marine mammals is deemed at-risk of interacting with the gear. NEFSC will conduct monitoring and retrieval of gear every 12 to 24 hour soak period. Fyke nets equal or greater to 2 m will be fitted with a marine mammal excluder device. The exclusion device consists of a grate the dimensions of which were based on exclusion devices on Penobscot Hydroelectric fishway facilities that are four to six inches and allow for passage of numerous target species including river herring, eels, striped bass, and adult salmon. The 1-m fyke net does not require an excluder device as the opening is 12 cm. These small openings will prevent marine mammals from entering the nets. Pot/Trap Surveys All pot/trap surveys will implement that same mitigation as described for longline surveys. Dredge Surveys For all scallop and hydraulic clam dredges, the OOD, CS or others will scan for marine mammals for 15 minutes prior to deploying gear. If marine mammals are observed within 1 km of the station, NEFSC will delay setting the gear until the marine mammal(s) has moved past and on a path away from the station or implement the move-on rule or the OOD or CS may implement the move-on rule. Dredge gear will not be deployed in the marine mammal is considered at-risk of interaction. Sampling will be conducted upon arrival at the station and continue until gear is back on deck. Similar to trawl gear, care will be taken when emptying the nets to avoid damage to any marine mammals that may be caught in the gear but are not visible upon retrieval. NEFSC will empty the net close to the deck/sorting area to avoid damage to marine mammals that may be caught in gear. The gear will be emptied as quickly as possible after retrieval in order to determine whether or not marine mammals are present. Based on our evaluation of the applicant’s proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed Monitoring and Reporting In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density); • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas); • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors; • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks; • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and • Mitigation and monitoring effectiveness. NEFSC must designate a compliance coordinator who must be responsible for ensuring compliance with all requirements of any LOA issued pursuant to these regulations and for preparing for any subsequent request(s) for incidental take authorization. Since the 2016 final rule, NEFSC has made its training, operations, data collection, animal handling, and sampling protocols more systematic in order to improve its ability to understand how mitigation measures influence interaction rates and ensure VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 its research operations are conducted in an informed manner and consistent with lessons learned from those with experience operating these gears in close proximity to marine mammals. In addition, NMFS has established a formal incidental take reporting system, the PSIT database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to agency leadership and other relevant staff and alerts them to the event and that updated information describing the circumstances of the event have been inputted into the database. It is in this spirit that we propose the monitoring requirements described below. Visual Monitoring Marine mammal watches are a standard part of conducting fisheries research activities and are implemented as described previously in ‘‘Proposed Mitigation.’’ Dedicated marine mammal visual monitoring occurs as described (1) for some period prior to deployment of most research gear; (2) throughout deployment and active fishing of all research gears; (3) for some period prior to retrieval of longline gear; and (4) throughout retrieval of all research gear. This visual monitoring is performed by trained NEFSC personnel or other trained crew during the monitoring period. Observers record the species and estimated number of animals present and their behaviors. This may provide valuable information towards an understanding of whether certain species may be attracted to vessels or certain survey gears. Separately, personnel on watch (those navigating the vessel and other crew; these will typically not be NEFSC personnel) monitor for marine mammals at all times when the vessel is being operated. The primary focus for this type of watch is to avoid striking marine mammals and to generally avoid navigational hazards. These personnel on watch typically have other duties associated with navigation and other vessel operations and are not required to record or report to the scientific party data on marine mammal sightings, except when gear is being deployed, soaking, or retrieved or when marine mammals are observed in the path of the ship during transit. NEFSC will also monitor disturbance of hauled out pinnipeds resulting from the presence of researchers, paying particular attention to the distance at which pinnipeds are disturbed. Disturbance will be recorded according to the three-point scale, representing PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 30117 increasing seal response to disturbance, as shown in Table 15. Training NMFS considers the proposed suite of monitoring and operational procedures to be necessary to avoid adverse interactions with protected species and still allow NEFSC to fulfill its scientific missions. However, some mitigation measures such as the move-on rule require judgments about the risk of gear interactions with protected species and the best procedures for minimizing that risk on a case-by-case basis. Vessel operators and Chief Scientists are charged with making those judgments at sea. They are all highly experienced professionals but there may be inconsistencies across the range of research surveys conducted and funded by NEFSC in how those judgments are made. In addition, some of the mitigation measures described above could also be considered ‘‘best practices’’ for safe seamanship and avoidance of hazards during fishing (e.g., prior surveillance of a sample site before setting trawl gear). At least for some of the research activities considered, explicit links between the implementation of these best practices and their usefulness as mitigation measures for avoidance of protected species may not have been formalized and clearly communicated with all scientific parties and vessel operators. NMFS therefore proposes a series of improvements to NEFSC protected species training, awareness, and reporting procedures. NMFS expects these new procedures will facilitate and improve the implementation of the mitigation measures described above. NEFSC will continue to use the process for its Chief Scientists and vessel operators to communicate with each other about their experiences with marine mammal interactions during research work with the goal of improving decision-making regarding avoidance of adverse interactions. As noted above, there are many situations where professional judgment is used to decide the best course of action for avoiding marine mammal interactions before and during the time research gear is in the water. The intent of this mitigation measure is to draw on the collective experience of people who have been making those decisions, provide a forum for the exchange of information about what went right and what went wrong, and try to determine if there are any rules-of-thumb or key factors to consider that would help in future decisions regarding avoidance practices. NEFSC would coordinate not only among its staff and vessel captains E:\FR\FM\04JNP2.SGM 04JNP2 30118 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules but also with those from other fisheries science centers and institutions with similar experience. NEFSC would also continue utilizing the formalized marine mammal training program required for all NEFSC research projects and for all crew members that may be posted on monitoring duty or handle incidentally caught marine mammals. Training programs would be conducted on a regular basis and would include topics such as monitoring and sighting protocols, species identification, decision-making factors for avoiding take, procedures for handling and documenting marine mammals caught in research gear, and reporting requirements. The Observer Program currently provides protected species training (and other types of training) for NMFS-certified observers placed on board commercial fishing vessels. NEFSC Chief Scientists and appropriate members of NEFSC research crews will be trained using similar monitoring, data collection, and reporting protocols for marine mammal as is required by the Observer Program. All NEFSC research crew members that may be assigned to monitor for the presence of marine mammals during future surveys will be required to attend an initial training course and refresher courses annually or as necessary. The implementation of this training program would formalize and standardize the information provided to all research crew that might experience marine mammal interactions during research activities. For all NEFSC research projects and vessels, written cruise instructions and protocols for avoiding adverse interactions with marine mammals will be reviewed and, if found insufficient, made fully consistent with the Observer Program training materials and any guidance on decision-making that arises out of the two training opportunities described above. In addition, informational placards and reporting procedures will be reviewed and updated as necessary for consistency and accuracy. All NEFSC research cruises already include pre-sail review of marine mammal protocols for affected crew but NEFSC will also review its briefing instructions for consistency and accuracy. NEFSC will continue to coordinate with the Greater Atlantic Regional Fisheries Office (GARFO), NEFSC fishery scientists, NOAA research vessel personnel, and other NMFS staff as appropriate to review data collection, marine mammal interactions, and refine data collection and mitigation protocols, as required. NEFSC will also coordinate with NMFS’ Office of Science and VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Technology to ensure training and guidance related to handling procedures and data collection is consistent with other fishery science centers, where appropriate. Reporting NMFS has established a formal incidental take reporting system, the Protected Species Incidental Take (PSIT) database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to NMFS leadership and other relevant staff, alerting them to the event and to the fact that updated information describing the circumstances of the event has been inputted to the database. The PSIT and CS reports represent not only valuable real-time reporting and information dissemination tools but also serve as an archive of information that may be mined in the future to study why takes occur by species, gear, region, etc. The NEFSC is required to report all takes of protected species, including marine mammals, to this database within 48 hours of the occurrence and following standard protocol. In the unanticipated event that NEFSC fisheries research activities clearly cause the take of a marine mammal in a prohibited manner, NEFSC personnel engaged in the research activity must immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the NEFSC Director (or designee). The incident must be reported immediately to OPR and the NMFS GARFO. OPR will review the circumstances of the prohibited take and work with NEFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by NEFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident including, but not limited to, monitoring prior to and occurring at time of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Status of all sound source use in the 24 hours preceding the incident; PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 (vii) Water depth; (viii) Fate of the animal(s) (e.g. dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared, etc.); and (ix) Photographs or video footage of the animal(s). In the event that NEFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), NEFSC must immediately report the incident to OPR and the NMFS GARFO. The report must include the information identified above. Activities may continue while OPR reviews the circumstances of the incident. OPR will work with NEFSC to determine whether additional mitigation measures or modifications to the activities are appropriate. In the event that NEFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to NEFSC fisheries research activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), NEFSC must report the incident to OPR and GARFO, NMFS, within 24 hours of the discovery. NEFSC must provide photographs or video footage or other documentation of the stranded animal sighting to OPR. In the event of a ship strike of a marine mammal by any NEFSC or partner vessel involved in the activities covered by the authorization, NEFSC or partner must immediately report the information described above, as well as the following additional information: (i) Vessel’s speed during and leading up to the incident; (ii) Vessel’s course/heading and what operations were being conducted;, (iii) Status of all sound sources in use; (iv) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; (v) Estimated size and length of animal that was struck; and (vi) Description of the behavior of the marine mammal immediately preceding and following the strike. NEFSC will also collect and report all necessary data, to the extent practicable given the primacy of human safety and the well-being of captured or entangled marine mammals, to facilitate serious injury (SI) determinations for marine mammals that are released alive. NEFSC will require that the CS complete data forms and address supplemental questions, both of which have been E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules developed to aid in SI determinations. NEFSC understands the critical need to provide as much relevant information as possible about marine mammal interactions to inform decisions regarding SI determinations. In addition, the NEFSC will perform all necessary reporting to ensure that any incidental M/SI is incorporated as appropriate into relevant SARs. Negligible Impact Analysis and Determination Introduction—NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., 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’ implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, and specific consideration of take by M/SI previously authorized for other NMFS research activities). We note here that the takes from potential gear interactions enumerated below could result in non-serious injury, but their worst potential outcome (mortality) is analyzed for the purposes of the negligible impact determination. We discuss here the connection, and differences, between the legal mechanisms for authorizing incidental take under section 101(a)(5) for activities such as NEFSC’s research activities, and for authorizing incidental take from commercial fisheries. In 1988, VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Congress amended the MMPA’s provisions for addressing incidental take of marine mammals in commercial fishing operations. Congress directed NMFS to develop and recommend a new long-term regime to govern such incidental taking (see MMC, 1994). The need to develop a system suited to the unique circumstances of commercial fishing operations led NMFS to suggest a new conceptual means and associated regulatory framework. That concept, PBR, and a system for developing plans containing regulatory and voluntary measures to reduce incidental take for fisheries that exceed PBR were incorporated as sections 117 and 118 in the 1994 amendments to the MMPA. PBR is defined in section 3 of the MMPA (16 U.S.C. 1362(20)) as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (OSP) and, although not controlling, can be one measure considered among other factors when evaluating the effects of M/SI on a marine mammal species or stock during the section 101(a)(5)(A) process. OSP is defined in section 3 of the MMPA (16 U.S.C. 1362(9)) as the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element. Through section 2, an overarching goal of the statute is to ensure that each species or stock of marine mammal is maintained at or returned to its OSP. PBR values are calculated by NMFS as the level of annual removal from a stock that will allow that stock to equilibrate within OSP at least 95 percent of the time, and is the product of factors relating to the minimum population estimate of the stock (Nmin), the productivity rate of the stock at a small population size, and a recovery factor. Determination of appropriate values for these three elements incorporates significant precaution, such that application of the parameter to the management of marine mammal stocks may be reasonably certain to achieve the goals of the MMPA. For example, calculation of Nmin incorporates the precision and variability associated with abundance information, while also providing reasonable assurance that the stock size is equal to or greater than the estimate (Barlow et al., 1995). In general, the three factors are developed on a stock-specific basis in consideration of one another in order to produce conservative PBR values that PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 30119 appropriately account for both imprecision that may be estimated, as well as potential bias stemming from lack of knowledge (Wade, 1998). Congress called for PBR to be applied within the management framework for commercial fishing incidental take under section 118 of the MMPA. As a result, PBR cannot be applied appropriately outside of the section 118 regulatory framework without consideration of how it applies within the section 118 framework, as well as how the other statutory management frameworks in the MMPA differ from the framework in section 118. PBR was not designed and is not used as an absolute threshold limiting commercial fisheries. Rather, it serves as a means to evaluate the relative impacts of those activities on marine mammal stocks. Even where commercial fishing is causing M/SI at levels that exceed PBR, the fishery is not suspended. When M/ SI exceeds PBR in the commercial fishing context under section 118, NMFS may develop a take reduction plan, usually with the assistance of a take reduction team. The take reduction plan will include measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below the stock’s PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather utilizes the take reduction process to further mitigate the effects of fishery activities via additional bycatch reduction measures. In other words, under section 118 of the MMPA, PBR does not serve as a strict cap on the operation of commercial fisheries that may incidentally take marine mammals. Similarly, to the extent PBR may be relevant when considering the impacts of incidental take from activities other than commercial fisheries, using it as the sole reason to deny (or issue) incidental take authorization for those activities would be inconsistent with Congress’s intent under section 101(a)(5), NMFS’ long-standing regulatory definition of ‘‘negligible impact,’’ and the use of PBR under section 118. The standard for authorizing incidental take for activities other than commercial fisheries under section 101(a)(5) continues to be, among other things that are not related to PBR, whether the total taking will have a negligible impact on the species or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to make the negligible impact finding or authorize incidental take through multiyear regulations, nor does its companion provision at 101(a)(5)(D) for authorizing E:\FR\FM\04JNP2.SGM 04JNP2 30120 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules non-lethal incidental take under the same negligible-impact standard. NMFS’ MMPA implementing regulations state that take has a negligible impact when it does not adversely affect the species or stock through effects on annual rates of recruitment or survival—likewise without reference to PBR. When Congress amended the MMPA in 1994 to add section 118 for commercial fishing, it did not alter the standards for authorizing non-commercial fishing incidental take under section 101(a)(5), implicitly acknowledging that the negligible impact standard under section 101(a)(5) is separate from the PBR metric under section 118. In fact, in 1994 Congress also amended section 101(a)(5)(E) (a separate provision governing commercial fishing incidental take for species listed under the Endangered Species Act) to add compliance with the new section 118 but retained the standard of the negligible impact finding under section 101(a)(5)(A) (and section 101(a)(5)(D)), showing that Congress understood that the determination of negligible impact and application of PBR may share certain features but are, in fact, different. Since the introduction of PBR in 1994, NMFS had used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries managementrelated provisions of the MMPA. Prior to the Court’s ruling in Conservation Council for Hawaii v. National Marine Fisheries Service, 97 F. Supp. 3d 1210 (D. Haw. 2015) and consideration of PBR in a series of section 101(a)(5) rulemakings, there were a few examples where PBR had informed agency deliberations under other MMPA sections and programs, such as playing a role in the issuance of a few scientific research permits and subsistence takings. But as the Court found when reviewing examples of past PBR consideration in Georgia Aquarium v. Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. 2015), where NMFS had considered PBR outside the commercial fisheries context, ‘‘it has treated PBR as only one ‘quantitative tool’ and [has not used it] as the sole basis for its impact analyses.’’ Further, the agency’s thoughts regarding the appropriate role of PBR in relation to MMPA programs outside the commercial fishing context have evolved since the agency’s early application of PBR to section 101(a)(5) decisions. Specifically, NMFS’ denial of a request for incidental take authorization for the U.S. Coast Guard in 1996 seemingly was based on the potential for lethal take in relation to VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 PBR and did not appear to consider other factors that might also have informed the potential for ship strike in relation to negligible impact (61 FR 54157; October 17, 1996). The MMPA requires that PBR be estimated in SARs and that it be used in applications related to the management of take incidental to commercial fisheries (i.e., the take reduction planning process described in section 118 of the MMPA and the determination of whether a stock is ‘‘strategic’’ as defined in section 3), but nothing in the statute requires the application of PBR outside the management of commercial fisheries interactions with marine mammals. Nonetheless, NMFS recognizes that as a quantitative metric, PBR may be useful as a consideration when evaluating the impacts of other human-caused activities on marine mammal stocks. Outside the commercial fishing context, and in consideration of all known human-caused mortality, PBR can help inform the potential effects of M/SI requested to be authorized under 101(a)(5)(A). As noted by NMFS and the U.S. Fish and Wildlife Service in our implementation regulations for the 1986 amendments to the MMPA (54 FR 40341, September 29, 1989), the Services consider many factors, when available, in making a negligible impact determination, including, but not limited to, the status of the species or stock relative to OSP (if known); whether the recruitment rate for the species or stock is increasing, decreasing, stable, or unknown; the size and distribution of the population; and existing impacts and environmental conditions. In this multi-factor analysis, PBR can be a useful indicator for when, and to what extent, the agency should take an especially close look at the circumstances associated with the potential mortality, along with any other factors that could influence annual rates of recruitment or survival. When considering PBR during evaluation of effects of M/SI under section 101(a)(5)(A), we first calculate a metric for each species or stock that incorporates information regarding ongoing anthropogenic M/SI into the PBR value (i.e., PBR minus the total annual anthropogenic mortality/serious injury estimate in the SAR), which is called ‘‘residual PBR’’ (Wood et al., 2012). We first focus our analysis on residual PBR because it incorporates anthropogenic mortality occurring from other sources. If the ongoing humancaused mortality from other sources does not exceed PBR, then residual PBR is a positive number, and we consider how the anticipated or potential PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 incidental M/SI from the activities being evaluated compares to residual PBR using the framework in the following paragraph. If the ongoing anthropogenic mortality from other sources already exceeds PBR, then residual PBR is a negative number and we consider the M/SI from the activities being evaluated as described further below. When ongoing total anthropogenic mortality from the applicant’s specified activities does not exceed PBR and residual PBR is a positive number, as a simplifying analytical tool we first consider whether the specified activities could cause incidental M/SI that is less than 10 percent of residual PBR (the ‘‘insignificance threshold,’’ see below). If so, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI for the marine mammal stock in question that alone (i.e., in the absence of any other take) will not adversely affect annual rates of recruitment and survival. As such, this amount of M/SI would not be expected to affect rates of recruitment or survival in a manner resulting in more than a negligible impact on the affected stock unless there are other factors that could affect reproduction or survival, such as Level A and/or Level B harassment, or other considerations such as information that illustrates uncertainty involved in the calculation of PBR for some stocks. In a few prior incidental take rulemakings, this threshold was identified as the ‘‘significance threshold,’’ but it is more accurately labeled an insignificance threshold, and so we use that terminology here. Assuming that any additional incidental take by Level A or Level B harassment from the activities in question would not combine with the effects of the authorized M/SI to exceed the negligible impact level, the anticipated M/SI caused by the activities being evaluated would have a negligible impact on the species or stock. However, M/SI above the 10 percent insignificance threshold does not indicate that the M/SI associated with the specified activities is approaching a level that would necessarily exceed negligible impact. Rather, the 10 percent insignificance threshold is meant only to identify instances where additional analysis of the anticipated M/SI is not required because the negligible impact standard clearly will not be exceeded on that basis alone. Where the anticipated M/SI is near, at, or above residual PBR, consideration of other factors (positive or negative), including those outlined above, as well as mitigation is especially important to E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules assessing whether the M/SI will have a negligible impact on the species or stock. PBR is a conservative metric and not sufficiently precise to serve as an absolute predictor of population effects upon which mortality caps would appropriately be based. For example, in some cases stock abundance (which is one of three key inputs into the PBR calculation) is underestimated because marine mammal survey data within the U.S. EEZ are used to calculate the abundance even when the stock range extends well beyond the U.S. EEZ. An underestimate of abundance could result in an underestimate of PBR. Alternatively, we sometimes may not have complete M/SI data beyond the U.S. EEZ to compare to PBR, which could result in an overestimate of residual PBR. The accuracy and certainty around the data that feed any PBR calculation, such as the abundance estimates, must be carefully considered to evaluate whether the calculated PBR accurately reflects the circumstances of the particular stock. M/SI that exceeds PBR may still potentially be found to be negligible in light of other factors that offset concern, especially when robust mitigation and adaptive management provisions are included. PBR was designed as a tool for evaluating mortality and is defined as the number of animals that can be removed while allowing that stock to reach or maintain its OSP. OSP is defined as a population that falls within a range from the population level that is the largest supportable within the ecosystem to the population level that results in maximum net productivity, and thus is an aspirational management goal of the overall statute with no specific timeframe by which it should be met. PBR is designed to ensure minimal deviation from this overarching goal, with the formula for PBR typically ensuring that growth towards OSP is not reduced by more than 10 percent (or equilibrates to OSP 95 percent of the time). As PBR is applied by NMFS, it provides that growth toward OSP is not reduced by more than 10 percent, which certainly allows a stock to reach or maintain its OSP in a conservative and precautionary manner—and we can therefore clearly conclude that if PBR were not exceeded, there would not be adverse effects on the affected species or stocks. Nonetheless, it is equally clear that in some cases the time to reach this aspirational OSP level could be slowed by more than 10 percent (i.e., total human-caused mortality in excess of PBR could be allowed) without adversely affecting a species or stock through effects on its rates of VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 recruitment or survival. Thus even in situations where the inputs to calculate PBR are thought to accurately represent factors such as the species’ or stock’s abundance or productivity rate, it is still possible for incidental take to have a negligible impact on the species or stock even where M/SI exceeds residual PBR or PBR. PBR is helpful in informing the analysis of the effects of mortality on a species or stock because it is important from a biological perspective to be able to consider how the total mortality in a given year may affect the population. However, section 101(a)(5)(A) of the MMPA indicates that NMFS shall authorize the requested incidental take from a specified activity if we find that the total of such taking [i.e., from the specified activity] will have a negligible impact on such species or stock. In other words, the task under the statute is to evaluate the applicant’s anticipated take in relation to their take’s impact on the species or stock, not other entities’ impacts on the species or stock. Neither the MMPA nor NMFS’ implementing regulations call for consideration of other unrelated activities and their impacts on the species or stock. In fact, in response to public comments on the implementing regulations NMFS explained that such effects are not considered in making negligible impact findings under section 101(a)(5), although the extent to which a species or stock is being impacted by other anthropogenic activities is not ignored. Such effects are reflected in the baseline of existing impacts as reflected in the species’ or stock’s abundance, distribution, reproductive rate, and other biological indicators. Our evaluation of the M/SI for each of the species and stocks for which M/SI could occur follows. In addition, all mortality authorized for some of the same species or stocks over the next several years pursuant to our final rulemakings for the NMFS Southeast Fisheries Science Center (SEFSC) and U.S. Navy has been incorporated into the residual PBR. By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through NEFSC research activities may affect the species’ or stocks’ annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity. We first consider maximum potential incidental M/SI for each stock (Table 10) in consideration of NMFS’s PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 30121 threshold for identifying insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July 20, 2004)). By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through NEFSC research activities may affect the species’ or stock’s annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity. Summary of Estimated Incidental Take Here we provide a summary of the total incidental take authorization on an annual basis, as well as other information relevant to the negligible impact analysis. Table 19 shows information relevant to our negligible impact analysis concerning the annual amount of M/SI take that could occur for each stock when considering the proposed incidental take along with other sources of M/SI. As noted previously, although some gear interactions may result in Level A harassment or the release of an uninjured animal, for the purposes of the negligible impact analysis, we assume that all of these takes could potentially be in the form of M/SI. We previously authorized take of marine mammals incidental to fisheries research operations conducted by the SEFSC (see 85 FR 27028, May 6, 2020) and U.S. Navy (84 FR 70712, December 23, 2019). This take would occur to some of the same stocks for which we may authorize take incidental to NEFSC fisheries research operations. Therefore, in order to evaluate the likely impact of the take by M/SI in this rule, we consider not only other ongoing sources of human-caused mortality but the potential mortality authorized for SEFSC fisheries and ecosystem research and U.S. Navy testing and training in the Atlantic Ocean. As used in this document, other ongoing sources of human-caused (anthropogenic) mortality refers to estimates of realized or actual annual mortality reported in the SARs and does not include authorized or unknown mortality. Below, we consider the total taking by M/SI for NEFSC activities and previously authorized for SEFSC and Navy activities together to produce a maximum annual M/SI take level (including take of unidentified marine mammals that could accrue to any relevant stock) and compare that value to the stock’s PBR value, considering ongoing sources of anthropogenic E:\FR\FM\04JNP2.SGM 04JNP2 30122 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules mortality. PBR and annual M/SI values considered in Table 19 reflect the most recent information available (i.e., draft 2020 SARs). TABLE 19—SUMMARY INFORMATION RELATED TO NEFSC PROPOSED ANNUAL TAKE BY MORTALITY OR SERIOUS INJURY AUTHORIZATION, 2021–2026 Stock abundance Proposed NEFSC M/ SI take (annual) Canadian East Coast ........ W. North Atlantic ............... ........................................... ........................................... 2,591 35,493 93,233 536,016 1 0.6 0.6 0.4 ........................................... 172,974 ........................................... (offshore stock) ................. (N. migratory stock) .......... (S. migratory stock) ........... GoM/Bay of Fundy ............ W. North Atlantic ............... ........................................... 39,921 62,851 6,639 3,751 95,543 75,834 27,131 Species Stock Minke whale ...................... Risso’s dolphin .................. Atlantic white-sided dolphin White-beaked common dolphin. Short-beaked common dolphin. Atlantic spotted dolphin ..... bottlenose dolphin ............. bottlenose dolphin ............. bottlenose dolphin ............. Harbor porpoise ................. Harbor seal ........................ Gray seal ........................... All but one stocks that may potentially be taken by M/SI fall below the insignificance threshold (i.e., 10 percent of residual PBR). The annual proposed take of grey seals is above the insignificance threshold. Stocks With M/SI Below the Insignificance Threshold As noted above, for a species or stock with incidental M/SI less than 10 percent of residual PBR, we consider M/ SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI that alone (i.e., in the absence of any other take and barring any other unusual circumstances) will clearly not adversely affect annual rates of recruitment and survival. In this case, as shown in Table 19, the following species or stocks have proposed M/SI from NEFSC fisheries research below their insignificance threshold: Minke whale (Canadian east coast); Risso’s dolphin; the Western North Atlantic stocks of Atlantic white-sided dolphin; White-beaked common dolphin; Shortbeaked common dolphin; Atlantic spotted dolphin; bottlenose dolphin (offshore and Northern migratory); harbor porpoise (Gulf of Marine/Bay of Fundy), and harbor seal (Western North Atlantic). For these stocks with authorized M/SI below the insignificance threshold, there are no other known factors, information, or unusual circumstances that indicate anticipated M/SI below the insignificance threshold could have adverse effects on annual rates of recruitment or survival and they are not discussed further. VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Annual M/ SI SEFSC take by M/ SI Navy AFTT take by M/SI 170 303 544 4,153 10.6 54.3 26 0 0 0.2 0 0 0.14 0 1.4 0 159.26 248.5 516.6 4,153 0.63 0.24 0.12 0.01 1.4 1,452 399 0.8 0 1,052.2 0.13 0.4 1.6 1.6 0.2 1.4 5 5 320 519 48 23 851 2,006 1,389 0 28 12.2–21.5 0 to 18.3 217 350 47,296 0.8 0.8 0.8 0.8 0.2 0.2 0.2 0 0 0 0 0 0 0 319.2 490.2 25.7–35 3.9–22.2 633.8 1,656 ¥45,907 0.13 0.33 <1 <7.8–70 0.22 0.30 .................. PBR Stocks With M/SI Above the Insignificance Threshold There is one stock for which we propose to authorize take where the annual rate of M/SI is above the 10 percent insignificance threshold: The western North Atlantic stock of gray seals. For this species, we explain below why we have preliminarily determined the proposed take is not expected or likely to adversely affect the species or stock through effects on annual rates of recruitment or survival. At first glance, the annual rate of mortality of gray seals exceeds PBR in absence of any authorized take proposed here or in other LOAs. However, the size of population reported in the SAR (and consequently the PBR value) is estimated separately for the portion of the population in Canada versus the U.S., and mainly reflects the size of the breeding population in each respective country. However, the annual estimated human-caused mortality and serious injury values in the SAR reflects both U.S. and Canada M/SI. For the period 2014–2018, the average annual estimated human-caused mortality and serious injury to gray seals in the U.S. and Canada was 4,729 (953 U.S./3,776 Canada) per year. Therefore, The U.S. portion of 2013–2017 average annual human-caused mortality and serious injury during 2014–2018 in U.S. waters does not exceed the portion of PBR in of the U.S. waters portion of the stocks but is still high (approximately 68 percent of PBR). In U.S. waters, the number of pupping sites has increased from 1 in 1988 to 9 in 2019, and are located in Maine and Massachusetts (Wood et al. 2019). Mean rates of increase in the number of pups born at various times since 1988 at 4 of PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 r-PBR Total M/SI take r-PBR (%) the more frequently surveyed pupping sites (Muskeget, Monomoy, Seal, and Green Islands) ranged from ¥0.2 percent (95% CI: ¥2.3–1.9%) to 26.3 percent (95% CI: 21.6–31.4%) (Wood et al. 2019). These high rates of increase provide further support that seals from other areas are continually supplementing the breeding population in U.S. waters. From 1988–2019, the estimated mean rate of increase in the number of pups born was 12.8 percent on Muskeget Island, 26.3 percent on Monomoy Island, 11.5 percent on Seal Island, and ¥0.2 percent on Green Island (Wood et al. 2019). These rates only reflect new recruits to the population and do not reflect changes in total population growth resulting from Canadian seals migrating to the region. Overall, the total population of gray seals in Canada was estimated to be increasing by 4.4 percent per year from 1960–2016 (Hammill et al. 2017). The status of the gray seal population relative to OSP in U.S. Atlantic EEZ waters is unknown, but the stock’s abundance appears to be increasing in both Canadian and U.S. waters. For these reasons, the issuance of the proposed M/SI take is not likely to affect annual rates of recruitment of survival. Acoustic Effects As described in greater depth previously, the NEFSC’s use of active acoustic sources has the likely potential to result in no greater than Level B (behavioral) harassment of marine mammals. Level A harassment is not an anticipated outcome of exposure, and we are not proposing to authorize it. Marine mammals are expected to have short-term, minor behavioral reactions to exposure such as moving away from the source. Some marine mammals (e.g., E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules delphinids) may choose to bow ride the source vessel; in which case exposure is expected to have no effect on behavior. For the majority of species, the amount of proposed annual take by Level B harassment is very low (less than 1 percent) in relation to the population abundance estimate. For stocks above 1 percent (n=3), the amount of proposed annual take by Level B harassment is less than 12 percent. We have produced what we believe to be conservative estimates of potential incidents of Level B harassment. The procedure for producing these estimates, described in detail in the notice of proposed rulemaking for the initial LOA (80 FR 39542, July 9, 2015) and summarized earlier in the Estimated Take Due to Acoustic Harassment section, represents NMFS’ best effort towards balancing the need to quantify the potential for occurrence of Level B harassment due to production of underwater sound with a general lack of information related to the specific way that these acoustic signals, which are generally highly directional and transient, interact with the physical environment and to a meaningful understanding of marine mammal perception of these signals and occurrence in the areas where the NEFSC operates. The sources considered here have moderate to high output frequencies (10 to 200 kHz), generally short ping durations, and are typically focused (highly directional) to serve their intended purpose of mapping specific objects, depths, or environmental features. In addition, some of these sources can be operated in different output modes (e.g., energy can be distributed among multiple output beams) that may lessen the likelihood of perception by and potential impacts on marine mammals in comparison with the quantitative estimates that guide our take authorization. In particular, low-frequency hearing specialists (i.e., mysticetes) are less likely to perceive or, given perception, to react to these signals. As described previously, NEFSC determined that the EK60, ME 70, and DSM 300 sources comprise the total effective exposures relative to line-kilometers surveyed. Acoustic disturbance takes are calculated for these three dominant sources. Of these dominant acoustic sources, only the EK 60 can use a frequency within the hearing range of baleen whales (18k Hz). Therefore, Level B harassment of baleen whales is only expected for exposure to the EK60. The other two dominant sources are outside of their hearing range. There is some minimal potential for temporary VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 effects to hearing for certain marine mammals, but most effects would likely be limited to temporary behavioral disturbance. Effects on individuals that are taken by Level B harassment will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity (e.g., Southall et al., 2007). There is the potential for behavioral reactions of greater severity, including displacement, but because of the directional nature of the sources considered here and because the source is itself moving, these outcomes are unlikely and would be of short duration if they did occur. Although there is no information on which to base any distinction between incidents of harassment and individuals harassed, the same factors, in conjunction with the fact that NEFSC survey effort is widely dispersed in space and time, indicate that repeated exposures of the same individuals would be unlikely. The acoustic sources proposed to be used by NEFSC are generally of low source level, higher frequency, and narrow beamwidth. As described previously, there is some minimal potential for temporary effects to hearing for certain marine mammals, but most effects would likely be limited to temporary behavioral disturbance. Effects on individuals that are taken by Level B harassment will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity (e.g., Ellison et al., 2012). Individuals may move away from the source if disturbed; however, because the source is itself moving and because of the directional nature of the sources considered here, there is unlikely to be even temporary displacement from areas of significance and any disturbance would be of short duration. The areas ensonified above the Level B harassment threshold during NEFSC surveys are extremely small relative to the overall survey areas. Although there is no information on which to base any distinction between incidents of harassment and individuals harassed, the same factors, in conjunction with the fact that NEFSC survey effort is widely dispersed in space and time, indicate that repeated exposures of the same individuals would be very unlikely. The short term, minor behavioral responses that may occur incidental to NEFSC use of acoustic sources, are not expected to result in PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 30123 impacts the reproduction or survival of any individuals, much less have an adverse impact on the population. Similarly, disturbance of pinnipeds by researchers are expected to be infrequent and cause only a temporary disturbance on the order of minutes. This level of periodic incidental harassment would have temporary effects and would not be expected to alter the continued use of the tidal ledges by seals. Anecdotal reports from previous monitoring show that the pinnipeds returned to the various sites and did not permanently abandon haulout sites after the NEFSC conducted their research activities. Monitoring results from other activities involving the disturbance of pinnipeds and relevant studies of pinniped populations that experience more regular vessel disturbance indicate that individually significant or population level impacts are unlikely to occur. When considering the individual animals likely affected by this disturbance, only a small fraction of the estimated population abundance of the affected stocks would be expected to experience the disturbance. Therefore, the NEFSC activity cannot be reasonably expected to, and is not reasonably likely to, adversely affect species or stocks through effects on annual rates of recruitment or survival. Conclusions In summary, as described in the Serious Injury and Mortality section, the proposed takes by serious injury or mortality from NEFSC activities, alone, are unlikely to adversely affect any species or stock through effects on annual rates of recruitment or survival. Further, the low severity and magnitude of expected Level B harassment is not predicted to affect the reproduction or survival of any individual marine mammals, much less the rates of recruitment or survival of any species or stock. Therefore, the authorized Level B harassment, alone or in combination with the M/SI authorized for some species or stocks, will result in a negligible impact on the effected stocks and species. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks. E:\FR\FM\04JNP2.SGM 04JNP2 30124 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules Small Numbers As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. Please see Table 18 for information relating to this small numbers analysis. The total amount of taking proposed for authorization is less than one percent for a majority of stocks, and no more than 12 percent for any given stock. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by the issuance of regulations to the NEFSC. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults whenever we propose to authorize take for endangered or threatened species, in this case with the Greater Atlantic Regional Fisheries Office (GARFO). VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 NMFS is proposing to authorize take, by Level B harassment only of North Atlantic right, fin, sei, blue and sperm whales, which are listed under the ESA. Therefore, OPR has requested initiation of Section 7 consultation with the GARFO for the issuance of this IHA. NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization. Adaptive Management The regulations governing the take of marine mammals incidental to NEFSC fisheries research survey operations would contain an adaptive management component. The inclusion of an adaptive management component will be both valuable and necessary within the context of five-year regulations for activities that have been associated with marine mammal mortality. The reporting requirements associated with this proposed rule are designed to provide OPR with monitoring data from the previous year to allow consideration of whether any changes are appropriate. OPR and the NEFSC will meet annually to discuss the monitoring reports and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows OPR to consider new information from different sources to determine (with input from the NEFSC regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable. The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal research and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs. Request for Information NMFS requests interested persons to submit comments, information, and suggestions concerning the NEFSC request and the proposed regulations (see ADDRESSES). All comments will be reviewed and evaluated as we prepare final rules and make final determinations on whether to issue the requested authorizations. This notice PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 and referenced documents provide all environmental information relating to our proposed action for public review. Classification The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866. Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NMFS is the sole entity that would be responsible for adhering to the requirements in these proposed regulations, and NMFS is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared. This proposed rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency. Notwithstanding any other provision of law, no person is required to respond to nor must a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648– 0151 and include applications for regulations, subsequent LOAs, and reports. List of Subjects in 50 CFR Part 219 Endangered and threatened species, Fish, Marine mammals, Reporting and recordkeeping requirements, Wildlife. Dated: May 21, 2021. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons stated in the preamble, 50 CFR part 219 is proposed to be amended as follows: PART 219—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 219 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq. E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules § 219.34 2. Amend Subpart D to part 219 to read as follows: ■ Subpart D—Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries Research in the Atlantic Coast Region Sec. 219.31 Specified activity and specified geographical region. 219.32 Effective dates. 219.33 Permissible methods of taking. 219.34 Prohibitions. 219.35 Mitigation requirements. 219.36 Requirements for monitoring and reporting. 219.37 Letters of Authorization. 219.38 Renewals and modifications of Letters of Authorization. 219.39 [Reserved] 219.40 [Reserved] Subpart D—Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries Research in the Atlantic Coast Region § 219.31 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the National Marine Fisheries Service’s (NMFS) Northeast Fisheries Science Center and those persons it authorizes or funds to conduct activities in the area outlined in paragraph (b) of this section during research survey program operations. (b) The incidental taking of marine mammals by Northeast Fisheries Science Center may be authorized in a Letter of Authorization (LOA) only if it occurs within the Northeast and Southeast Large Marine Ecosystem. § 219.32 Effective dates. Regulations in this subpart are effective from September 10, 2021 through September 9, 2026. § 219.33 Permissible methods of taking. (a) Under LOAs issued pursuant to §§ 216.106 of this chapter and 219.37, the Holder of the LOA (hereinafter ‘‘NEFSC’’) may incidentally, but not intentionally, take marine mammals within the area described in § 219.31(b) of this chapter by Level B harassment associated with use of active acoustic systems and physical or visual disturbance of hauled out pinnipeds and by Level A harassment, serious injury, or mortality associated with use of trawl, dredge, bottom and pelagic longline, gillnet, pot and trap, and fyke net gears, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 Prohibitions. Except for takings contemplated in § 219.33 and authorized by a LOA issued under §§ 216.106 of this chapter and 219.37, it shall be unlawful for any person to do any of the following in connection with the activities described in § 219.31: (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 219.37; (b) Take any marine mammal not specified in such LOA; (c) Take any marine mammal specified in such LOA in any manner other than as specified; (d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses. § 219.35 Mitigation requirements. When conducting the activities identified in § 219.31(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 219.37 must be implemented. These mitigation measures must include but are not limited to: (a) General conditions: (1) NEFSC must take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration’s (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant eventcontingent decision-making processes, are clearly understood and agreed upon; (2) NEFSC must coordinate and conduct briefings at the outset of each survey and as necessary between the ship’s crew (Commanding Officer/ master or designee(s), contracted vessel owners, as appropriate) and scientific party or in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures; (3) NEFSC must coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 30125 processes are understood and properly implemented; (4) When deploying any type of sampling gear at sea, NEFSC must at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment; (5) All vessels must comply with applicable and relevant take reduction plans, including any required use of acoustic deterrent devices; (6) If a NEFSC vessel 65 ft or longer is traveling within a North Atlantic right whale Seasonal Management Area, the vessel shall not exceed 10 knots in speed. When practicable, all NEFSC vessels traveling within a Dynamic Management Area shall not exceed 10 knots in speed; (7) All NEFSC vessels shall maintain a separation distance of 500 m and 100 m from a North Atlantic right whale and other large whales, respectively; (8) If a North Atlantic right whale is observed at any time during NEFSC research activities, NEFSC must immediately report sighting information to NMFS (866–755–6622), the U.S. Coast Guard via channel 16 and through the WhaleAlert app (https:// www.whalealert.org/); (9) NEFSC must implement handling and/or disentanglement protocols as specified in the guidance provided to NEFSC survey personnel; and (10) In the case of a bottlenose dolphin entanglement resulting in mortality and stock origin is unknown, the NEFSC must request and arrange for expedited genetic sampling for stock determination and photograph the dorsal fin and submit the image to the NMFS Regional Marine Mammal Stranding Coordinator for identification/matching to bottlenose dolphins in the Bottlenose Dolphin Photo-identification Catalog. (b) Trawl survey protocols: (1) NEFSC must conduct trawl operations as soon as is practicable upon arrival at the sampling station; (2) NEFSC must initiate marine mammal watches (visual observation) 15 minutes prior to sampling within 1 km of the site. Marine mammal watches must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation will be conducted using the naked eye and available vessel lighting; (3) NEFSC must implement the following ‘‘move-on rule.’’ If a marine mammal is sighted within 1 nautical mile (nm) of the planned location in the 15 minutes before gear deployment, E:\FR\FM\04JNP2.SGM 04JNP2 30126 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules NEFSC must move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station; (4) NEFSC must maintain visual monitoring effort during the entire period of time that trawl gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, NEFSC must take the most appropriate action to avoid marine mammal interaction; (5) If trawling operations have been suspended because of the presence of marine mammals, NEFSC may resume only after there are no sightings for 15 minutes within 1nm of sampling location; (6) NEFSC must implement standard survey protocols to minimize potential for marine mammal interaction, including minimum tow durations at target depth and minimum tow distance, and must carefully empty the trawl as quickly as possible upon retrieval; and (7) Trawl nets must be cleaned prior to deployment. (c) Dredge survey protocols: (1) NEFSC must deploy dredge gear as soon as is practicable upon arrival at the sampling station; (2) NEFSC must initiate marine mammal watches (visual observation) prior to sampling. Marine mammal watches must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation must be conducted using the naked eye and available vessel lighting; (3) NEFSC must implement the following ‘‘move-on rule.’’ If marine mammals are sighted within 1 nautical mile (nm) of the planned location in the 15 minutes before gear deployment, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station; (4) NEFSC must maintain visual monitoring effort during the entire period of time that dredge gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, NEFSC VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 must take the most appropriate action to avoid marine mammal interaction. NEFSC may use best professional judgment in making this decision; (5) If dredging operations have been suspended because of the presence of marine mammals, NEFSC may resume operations when practicable only when the animals are believed to have departed the area or after 15 minutes of no sightings. NEFSC may use best professional judgment in making this determination; and (6) NEFSC must carefully empty the dredge gear as quickly as possible upon retrieval to determine if marine mammals are present in the gear. (d) Bottom and pelagic longline survey protocols: (1) NEFSC must deploy longline gear as soon as is practicable upon arrival at the sampling station; (2) NEFSC must initiate marine mammal watches (visual observation) no less than fifteen minutes prior to both deployment and retrieval of the longline gear. Marine mammal watches must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation must be conducted using the naked eye and available vessel lighting; (3) NEFSC must implement the following ‘‘move-on rule.’’ If marine mammals are sighted within 1 nautical mile (nmi) of the planned location in the 15 minutes before gear deployment, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station; (4) For the Apex Predators Bottom Longline Coastal Shark Survey, if one or more marine mammals are observed within 1 nautical mile (nm) of the planned location in the 15 minutes before gear deployment, NEFSC must transit to a different section of the sampling area to maintain a minimum set distance of 1 nmi from the observed marine mammals. If, after moving on, marine mammals remain within 1 nmi, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nmi zone; (5) NEFSC must maintain visual monitoring effort during the entire period of gear deployment or retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 NEFSC must take the most appropriate action to avoid marine mammal interaction. NEFSC may use best professional judgment in making this decision; (6) If deployment or retrieval operations have been suspended because of the presence of marine mammals, NEFSC may resume such operations after there are no sightings of marine mammals for at least 15 minutes within the area or within the 1-nm area for the Apex Predators Bottom Longline Coastal Shark Survey. NEFSC may use best professional judgment in making this decision; and (7) NEFSC must implement standard survey protocols, including maximum soak durations and a prohibition on chumming. (e) Gillnet survey protocols: (1) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must deploy gillnet gear as soon as is practicable upon arrival at the sampling station; (2) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must initiate marine mammal watches (visual observation) prior to both deployment and retrieval of the gillnet gear. When the vessel is on station during the soak, marine mammal watches must be conducted during the soak by scanning the surrounding waters with the naked eye and binoculars (or monocular); (3) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must implement the following ‘‘move-on rule.’’ If marine mammals are sighted within 1 nmi of the planned location in the 15 minutes before gear deployment, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, the NEFSC and/or its cooperating institutions, contracted vessels, or commerciallyhired captains may decide to move again or to skip the station; (4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must carefully retrieve the gear as quickly as possible. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules may use best professional judgment in making this decision; (5) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must implement standard survey protocols, including continuously monitoring the gillnet gear during soak time and removing debris with each pass as the net is reset into the water to minimize bycatch; (6) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must ensure that surveys deploy acoustic pingers on gillnets in areas where required for commercial fisheries. NEFSC must ensure that the devices are operating properly before deploying the net; (7) NEFSC must ensure that cooperating institutions, contracted vessels, or commercially-hired captains conducting gillnet surveys adhere to monitoring and mitigation requirements and must include required protocols in all survey instructions, contracts, and agreements; (8) For the COASTSPAN gillnet surveys, the NEFSC will actively monitor for potential bottlenose dolphin entanglements by hand-checking the gillnet every 30 minutes; and (9) NEFSC will set only new or fully repaired gill nets, and modify nets to avoid large vertical gaps between float line and net as well as lead line and net when set. (f) Pot and trap survey protocols: (1) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must deploy pot gear as soon as is practicable upon arrival at the sampling station; (2) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must initiate marine mammal watches (visual observation) no less than 30 minutes prior to both deployment and retrieval of the pot and trap gear. Marine mammal watches must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation must be conducted using the naked eye and available vessel lighting; (3) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must implement the following ‘‘move-on’’ rule. If marine mammals are sighted within 1 nmi of the planned location in the 15 minutes before gear deployment, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains, as appropriate, may decide to move the VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, the NEFSC, and/or its cooperating institutions, contracted vessels, or commercially-hired captains may decide to move again or to skip the station; (4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must carefully retrieve the gear as quickly as possible. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision; (5) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must ensure that surveys deploy gear fulfilling all Pot/Trap universal commercial gear configurations such as weak link requirements and marking requirements as specified by applicable take reduction plans as required for commercial pot/trap fisheries; and (6) The NEFSC must ensure that its cooperating institutions, contracted vessels, or commercially-hired captains conducting pot and trap surveys adhere to monitoring and mitigation requirements and must include required protocols in all survey instructions, contracts, and agreements. (g) Fyke net gear protocols: (1) NEFSC must conduct fyke net gear deployment as soon as is practicable upon arrival at the sampling station; (2) NEFSC must visually survey the area prior to both deployment and retrieval of the fyke net gear. NEFSC must conduct monitoring and retrieval of the gear every 12- to 24-hour soak period; (3) If marine mammals are in close proximity (approximately 328 feet [100 meters]) of the set location, NEFSC must determine if the net should be removed from the water and the set location should be moved using best professional judgment; (4) If marine mammals are observed to interact with the gear during the setting, NEFSC must remove the gear from the water and implement best handling practices; and (5) NEFSC must install and use a marine mammal excluder device at all times when the 2-meter fyke net is used. (h) Rotary screw trap gear protocols: (1) NEFSC must conduct rotary screw trap deployment as soon as is PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 30127 practicable upon arrival at the sampling station; (2) NEFSC must visually survey the area prior to both setting and retrieval of the rotary screw trap gear. If marine mammals are observed in the sampling area, NEFSC must suspend or delay the sampling. NEFSC may use best professional judgment in making this decision; (3) NEFSC must tend to the trap on a daily basis to monitor for marine mammal interactions with the gear; and (4) If the rotary screw trap captures a marine mammal, NEFSC must remove gear and and implement best handling practices. § 219.36 Requirements for monitoring and reporting. (a) Compliance coordinator—NEFSC shall designate a compliance coordinator who shall be responsible for ensuring compliance with all requirements of any LOA issued pursuant to § 216.106 of this chapter and § 219.7 and for preparing for any subsequent request(s) for incidental take authorization. (b) Visual monitoring program: (1) Marine mammal visual monitoring must occur: Prior to deployment of beam, mid-water, and bottom trawl, bottom and pelagic longline, gillnet, fyke net, pot, trap, and rotary screw trap gear; throughout deployment of gear and active fishing of all research gears; and throughout retrieval of all research gear; (2) Marine mammal watches must be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated; (3) NEFSC must monitor any potential disturbance of pinnipeds on ledges, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance must be recorded according to a threepoint scale of response to disturbance; and (4) The NEFSC must continue to conduct a local census of pinniped haulout areas prior to conducting any fisheries research in the Penobscot River estuary. The NEFSC’s census reports must include an accounting of disturbance based on the three-point scale of response severity metrics. (c) Training: (1) NEFSC must conduct annual training for all chief scientists and other personnel (including its cooperating institutions, contracted vessels, or commercially-hired captains) who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, E:\FR\FM\04JNP2.SGM 04JNP2 30128 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. NEFSC may determine the agenda for these trainings; (2) NEFSC must also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful; and (3) NEFSC must coordinate with NMFS’ Southeast Fisheries Science Center (SEFSC) regarding surveys conducted in the southern portion of the Atlantic coast region, such that training and guidance related to handling procedures and data collection is consistent. (d) Handling procedures and data collection: (1) NEFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS Office of Protected Resources (OPR); (2) When practicable, for any marine mammal interaction involving the release of a live animal, NEFSC must collect necessary data to facilitate a serious injury determination; (3) NEFSC must provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring/or not bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction; and (4) NEFSC must record such data on standardized forms, which will be subject to approval by OPR. The data must be collected at a sufficient level of detail (e.g., circumstances leading to the interaction, extent of injury, condition upon release) to facilitate serious injury determinations under the MMPA. (e) Reporting: (1) NEFSC must report all incidents of marine mammal interaction to NMFS’ Protected Species Incidental Take database within 48 hours of occurrence; and (2) NEFSC must provide written reports to OPR upon request following any marine mammal interaction (animal captured or entangled in research gear). In the event of a marine mammal interaction, these reports must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made and rationale for VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 decisions made in vessel and gear handling. (3) The NEFSC must submit annual reports. (i) The period of reporting will be one year beginning at the date of issuance of the LOA. NEFSC must submit an annual summary report to OPR not later than ninety days following the end of the reporting period. (ii) These reports must contain, at minimum, the following: (A) Annual line-kilometers surveyed during which the EK60, ME70, DSM300 (or equivalent sources) were predominant; (B) Summary information regarding use of the following: All trawl gear, all longline gear, all gillnet gear, all dredge gear, fyke net gear, and rotary screw trap gear (including number of sets, hook hours, tows, and tending frequency specific to each gear type); (C) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why; (D) Summary information from the pinniped haulout censuses in the and summary information related to any disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to a three-point scale of response severity, and distance of closest approach; (E) A written evaluation of the effectiveness of NEFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; (F) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; and (G) A summary of all relevant training provided by the NEFSC and any coordination with the NMFS Southeast Fishery Science Center, the Greater Atlantic Regional Fisheries Office, and the Southeast Regional Office. (f) Reporting of injured or dead marine mammals: (1) In the event that personnel involved in the survey activities covered by the authorization discover an injured or dead marine mammal, NEFSC must report the incident to OPR and to the appropriate Northeast Regional Stranding Coordinator as soon as feasible. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 (ii) Species identification (if known) or description of the animal(s) involved; (iii) Condition of the animal(s) (including carcass condition if the animal is dead); (iv) Observed behaviors of the animal(s), if alive; (v) If available, photographs or video footage of the animal(s); and (vi) General circumstances under which the animal was discovered. (2) In the event of a ship strike of a marine mammal by any vessel involved in the activities covered by the authorization, SEFSC must report the incident to OPR and to the appropriate Northeast Regional Stranding Coordinator as soon as feasible. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Species identification (if known) or description of the animal(s) involved; (iii) Vessel’s speed during and leading up to the incident; (iv) Vessel’s course/heading and what operations were being conducted (if applicable); (v) Status of all sound sources in use; (vi) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; (vii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike; (viii) Estimated size and length of animal that was struck; (ix) Description of the behavior of the marine mammal immediately preceding and following the strike; (x) If available, description of the presence and behavior of any other marine mammals immediately preceding the strike; (xi) Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and (xii) To the extent practicable, photographs or video footage of the animal(s). § 219.37 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, NEFSC must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, NEFSC may apply for and obtain a renewal of the LOA. E:\FR\FM\04JNP2.SGM 04JNP2 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, NEFSC must apply for and obtain a modification of the LOA as described in § 219.38. (e) The LOA must set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA must be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of an LOA must be published in the Federal Register within thirty days of a determination. § 219.38 Renewals and modifications of Letters of Authorization. (a) An LOA issued under § 216.106 of this chapter and § 219.37 for the activity identified in § 219.31(a) must be renewed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these VerDate Sep<11>2014 17:49 Jun 03, 2021 Jkt 253001 regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented. (b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 219.37 for the activity identified in § 219.31(a) may be modified by OPR under the following circumstances: (1) OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with NEFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the PO 00000 Frm 00051 Fmt 4701 Sfmt 9990 30129 goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA: (A) Results from NEFSC’s monitoring from the previous year(s); (B) Results from other marine mammal and/or sound research or studies; and (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.32(b), an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action. § 219.39–219.40 [Reserved] [FR Doc. 2021–11188 Filed 6–3–21; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\04JNP2.SGM 04JNP2

Agencies

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

[[Page 30079]]

Vol. 86

Friday,

No. 106

June 4, 2021

Part II

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Part 219

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

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

[[Page 30080]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

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

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

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

ACTION: Proposed rule, request for comments.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Availability

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

Background

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization to incidentally take marine mammals must be granted
if NMFS finds that the taking will have a negligible impact on the
species or stock(s) and will not have an unmitigable adverse impact on
the availability of the species or stock(s) for taking for subsistence
uses (where relevant). Further, NMFS must prescribe the permissible
methods of taking and other ``means of effecting the least practicable
adverse impact'' on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance, and on the availability of the species or stocks
for taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.

Purpose and Need for This Regulatory Action

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

Legal Authority for the Regulatory Action

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

Summary of Major Provisions Within the Proposed Regulations

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

[[Page 30081]]

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

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
In July 2016, the NEFSC published a Final Programmatic
Environmental Assessment (PEA) for Fisheries Research Conducted and
Funded by the NEFSC (NMFS 2016a) to consider the direct, indirect and
cumulative effects to the human environment resulting from NEFSC's
activities as well as OPR's issuance of the regulations and subsequent
incidental take authorization. NMFS made the PEA available to the
public for review and comment, in relation specifically to its
suitability for assessment of the impacts of our action under the MMPA.
OPR signed a Finding of No Significant Impact (FONSI) on August 3,
2016. These documents are available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research.
On September 18, 2020, NMFS announced the availability of a Draft
Supplemental PEA for Fisheries Research Conducted and Funded by the
Northeast Fisheries Science Center for review and comment (85 FR
58339). The purpose of the Draft SPEA is to evaluate potential direct,
indirect, and cumulative effects of unforeseen changes in research that
were not analyzed in the 2016 PEA, or new research activities along the
U.S. East Coast. Where necessary, updates to certain information on
species, stock status or other components of the affected environment
that may result in different conclusions from the 2016 PEA are
presented in this analysis. The supplemental PEA is available at
https://www.fisheries.noaa.gov/action/draft-supplemental-programmatic-environmental-assessment-nefsc-research-now-available.
Information in the PEA, SPEA, NEFSC's application, and this notice
collectively provide the environmental information related to proposed
issuance of these regulations and subsequent incidental take
authorization for public review and comment. We will review all
comments submitted in response to this notice prior to concluding our
NEPA process and making a final decision on NEFSC's request.

Summary of Request

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

Description of Proposed Activity

Overview

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

Dates and Duration

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

Specified Geographical Region

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

[[Page 30082]]

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

BILLING CODE 3510-22-C

[[Page 30083]]

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

[[Page 30084]]

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

Detailed Description of Specific Activity

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

[[Page 30085]]

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

[[Page 30086]]

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

[[Page 30087]]

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

[[Page 30088]]

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

[[Page 30089]]

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

[[Page 30090]]

Tagging Projects................ Monkfish tagging Gillnet............................. Gillnet........... GOM, SNE, MAB..... September-December 18-20 DAS, 10 Y
projects. short-duration
sets/day, 180-200
sets total.
Ropeless Lobster Trap Research.. Research to develop Lobster Pots/Traps.................. Acoustic/ GOM, SNE, MAB Summer and Fall... 50-100 DAS, 500 N
ropeless gear/devices mechanical (Inshore and sets, singles and
to mitigate/eliminate releases for Offshore). up to 40 pots per
interactions with ropeless lobster set.
protected species gear and float
(whales and turtles) lines.
by utilizing
commercial lobster
gear.
Rod and Reel Tagging of Atlantic Use of rod and reel to Rod and Reel........................ Acoustic tags..... ME, Greenland..... Summer and Fall... 200-500 tags N
Salmon. capture, tag, release applied total.
Atlantic salmon in
international and US
waters.
Continuous Plankton Recorder A towed continuous Towed array......................... CPR............... ME to Nova Scotia. Summer and Fall... 24 DAS............ N
(CPR) Transect Surveys: GOM. plankton recording
device is deployed
from vessels of
opportunity in the
Gulf of Maine, monthly.
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[[Page 30091]]

Description of NEFSC's Active Acoustic Devices

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

[[Page 30092]]

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

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

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

Description of Marine Mammals in the Area of Specified Activities

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

[[Page 30093]]

information regarding status and trends, distribution and habitat
preferences, and behavior and life history, of the potentially affected
species. Species and stock information is also provided in NMFS' 2015
proposed rule associated with the current LOA (80 FR 39542; July 9,
2015), NMFS's 2016 Final Programmatic EA (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research) and, where updates
are necessary, NMFS 2019 draft supplemental programmatic EA (available
at https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-northeast-fisheries-science-center-fisheries-and). Additional
information regarding population trends and threats may be found in
NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).
Table 3 lists all species or stocks for which take is expected and
proposed to be authorized for this action, and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. For taxonomy, we follow Committee on
Taxonomy (2020). PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS's SARs). PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al.,
2020). All values presented in Table 3 are the most recent available at
the time of publication and are available in the draft 2020 SARs
(available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

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

[[Page 30094]]

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

As indicated above, all 35 number species (comprising 37 managed
stocks) in Table 3 temporally and spatially co-occur with the surveys
provided in Table 1 to the degree that take is reasonably likely to
occur, and we have proposed authorizing it. While beluga
(Delphinapterus leucas), Bryde's (Balaenoptera edeni), false killer
(Pseudorca crassidens) whales, harp seals (Pagophilus groenlandica) and
hooded seals (Cystophora cristata) have been documented in the area,
these occurrence records are rare and are considered beyond the normal
range of the species.
In addition, the manatee (Trichechus manatus latirostris) may be
found in the MAB and SE LME. However, manatee are managed by the U.S.
Fish and Wildlife Service and are not considered further in this
document.
A full description of the biology, ecology, and threats to marine
mammals listed in Table 3 can be found in NMFS proposed rule for the
initial LOA (80 FR 39542; July 9, 2015), NEFSC's application, and NMFS'
Programmatic Environmental Assessment (NMFS, 2016). Please refer to
those documents for those descriptions. Table 3 updates information
regarding abundance and human interaction and below we update on take
reduction planning, unusual mortality events, and biologically
important areas.
Take reduction planning--Take reduction plans help recover and
prevent the depletion of strategic marine mammal stocks that interact
with certain U.S. commercial fisheries, as required by Section 118 of
the MMPA. The immediate goal of a take reduction plan is to reduce,
within six months of its implementation, the M/SI of marine mammals
incidental to commercial fishing to less than the PBR level. The long-
term goal is to reduce, within five years of its implementation, the M/
SI of marine mammals incidental to commercial fishing to insignificant
levels, approaching a zero serious injury and mortality rate, taking
into account the economics of the fishery, the availability of existing
technology, and existing state or regional fishery management plans.
NMFS convenes Take Reduction Teams to develop these plans.
For marine mammals in specified geographic region of NEFSC research
programs, there are currently four take reduction plans in effect (the
Atlantic Large Whale Take Reduction Plan, the Bottlenose Dolphin Take
Reduction Plan, the Harbor Porpoise Take Reduction Plan, and the
Pelagic Longline Take Reduction Plan). As discussed earlier in the
``Proposed Mitigation'' section, the NEFSC and NEFSC cooperative
research projects comply with applicable TRP mitigation measures and
gear requirements specified for their respective fisheries and areas.
The Atlantic Large Whale Take Reduction Plan (ALWTRP)--The goal of
this plan is to reduce mortality/serious injury (M/SI) of North
Atlantic right, humpback, fin, and minke whales in several northeast
fisheries that use lobster trap/pots and gillnets. Gear modification
requirements and restrictions vary by location, date, and

[[Page 30095]]

gear type but may include the use of weak links, and gear marking and
configuration specifications. Detailed requirements may be found in the
regional guides to gillnet and pot/trap gear fisheries available at:
https://www.greateratlantic.fisheries.noaa.gov/Protected/whaletrp/.
Of the species/stocks of concern in the ALWTRP, the NEFSC has
requested the authorization of incidental M/SI harassment for the minke
whale only (see ``Estimated Take by Incidental Harassment'' later in
this document).
The Bottlenose Dolphin Take Reduction Plan--The goal of this plan
is to reduce M/SI of coastal bottlenose dolphins incidental to the
North Carolina inshore gillnet, Southeast Atlantic gillnet,
Southeastern U.S. shark gillnet, U.S. Mid-Atlantic coastal gillnet,
Atlantic blue crab trap/pot, Mid-Atlantic haul/beach seine, North
Carolina long haul seine, North Carolina roe mullet stop net, and
Virginia pound net fisheries (71 FR 24776, April 26, 2006). The
following general requirements were implemented: Spatial/temporal
gillnet restrictions, gear proximity (fishermen must stay within a set
distance of gear), gear modifications, non-regulatory conservation
measures, and a revision to the large mesh gillnet size restriction.
Detailed requirements may be found at: https://www.nmfs.noaa.gov/pr/interactions/trt/bdtrp.htm.
Of the species/stocks of concern in the take reduction plan, the
NEFSC has requested the authorization of incidental M/SI for two stocks
of bottlenose dolphins, one of which belongs to a coastal stock covered
in the take reduction plan (see ``Estimated Take by Incidental
Harassment'' later in this document).
The Harbor Porpoise Take Reduction Plan--The goal of this plan is
to reduce interactions between harbor porpoises and commercial gillnet
gear fisheries in the New England and the Mid-Atlantic areas.
Management includes seasonal time and area closures that correspond
with peak seasonal abundances of harbor porpoises and gear modification
requirements such as the use of pingers, floatline length, twine size,
tie downs, net size, net number, and numbers of nets per string.
Detailed requirements may be found at: https://www.greateratlantic.fisheries.noaa.gov/protected/porptrp/.
The NEFSC has requested the authorization of incidental M/SI
harassment for harbor porpoises (see ``Estimated Take by Incidental
Harassment'' later in this document).
The Pelagic Longline Take Reduction Plan--The plan addresses M/SI
of long-finned and short-finned pilot whales as well as Risso's,
common, and Atlantic white-sided dolphins in commercial pelagic
longline fishing gear in the Atlantic. Regulatory measures include
limiting mainline length to 20 nautical miles or less within the Mid-
Atlantic Bight and posting an informational placard on careful handling
and release of marine mammals in the wheelhouse and on working decks of
the vessel. Detailed requirements are on the internet at: https://www.greateratlantic.fisheries.noaa.gov/Protected/mmp/atgtrp/.
Of the species/stocks of concern in the take reduction plan, the
NEFSC has requested the authorization of incidental M/SI harassment for
Risso's, common, Atlantic spotted dolphin, and Atlantic white-sided
dolphins (see ``Estimated Take by Incidental Harassment'' later in this
document).
Unusual Mortality Events (UME)--The MMPA defines a UME as ``a
stranding that is unexpected; involves a significant die-off of any
marine mammal population; and demands immediate response.'' From 1991
to the present, there have been 22 formally recognized UMEs in the
Atlantic coast region involving species under NMFS' jurisdiction. Four
of those 22 UME are currently open and involve the following species:
North Atlantic right whales (NARWs), humpback whales, minke whales, and
harbor and gray seals.
NARW UME--Beginning in 2017, elevated mortalities in NARWs have
been documented, primarily in Canada but some in the U.S. and were
collectively declared an Unusual Mortality Event (UME). In 2017, there
were a total of 17 confirmed dead stranded whales (12 in Canada; 5 in
the United States) and in 2018, three confirmed dead stranded whales in
the United States. In 2019, nine dead whales stranded in Canada, and
one dead whale stranded in the United States. In 2020, two mortalities
were documented. To date in 2021, two mortalities has been documented.
The current total confirmed mortalities for the UME are 34 dead
stranded whales (21 in Canada; 13 in the United States), and the
leading category for the cause of death for this UME is ``human
interaction,'' specifically from entanglements or vessel strikes.
Additionally, since 2017, 15 live free-swimming non-stranded whales
have been documented with serious injuries from entanglements or vessel
strikes. More information on this UME can be found at https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
Atlantic Humpback Whale UME--Since January 2016, elevated humpback
whale mortalities have occurred along the Atlantic coast from Maine
through Florida. In total, 147 whales have stranded along the eastern
seaboard. The majority of strandings have occurred from the Outer
Banks, NC to Massachusetts. Partial or full necropsy examinations were
conducted on approximately half of the whales. Of the whales examined,
about 50 percent had evidence of human interaction, either ship strike
or entanglement. More information on this UME can be found at https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.
Atlantic Minke Whale UME--Since January 2017, elevated minke whale
mortalities have occurred along the Atlantic coast from Maine through
South Carolina. In total 105 whales have stranded, the majority along
the New England coast. More information on this UME can be found at
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.
Northeast Pinniped UME--Since July 2018, elevated numbers of harbor
seal and gray seal mortalities have occurred across Maine, New
Hampshire and Massachusetts. Additionally, seals showing clinical signs
have stranded as far south as Virginia, although not in elevated
numbers, therefore the UME investigation now encompasses all seal
strandings from Maine to Virginia. In total, 3,152 seals have stranded
along the mid-Atlantic and New England coast. Full or partial necropsy
examinations have been conducted on some of the seals and samples have
been collected for testing. Based on tests conducted so far, the main
pathogen found in the seals is phocine distemper virus. More
information about this UME can be found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.
Of these species involved in active UMEs, the NEFSC has requested,
and we propose to authorize, the incidental take, by mortality or
serious injury, of minke whales, and harbor and gray seals. The NEFSC
has also requested, and we are proposing to authorize, take by Level B
harassment for each of these species incidental to the use of active
acoustic equipment during fisheries and ecosystem research. See
``Estimated Take'' later in this document for more

[[Page 30096]]

information regarding the proposed take.

Biologically Important Areas

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

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

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Generalized hearing ranges were
chosen based on the approximately 65 dB threshold from the normalized
composite audiograms, with the exception for lower limits for low-
frequency cetaceans where the lower bound was deemed to be biologically
implausible and the lower bound from Southall et al. (2007) retained.
Marine mammal hearing groups and their associated hearing ranges are
provided in Table 5.

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

[[Page 30097]]

Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).

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

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

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

Ship Strike

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

[[Page 30098]]

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

Fishing Gear Interactions

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

[[Page 30099]]

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

[[Page 30100]]

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

Fyke Nets

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

NEFSC Gear Interactions

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

[[Page 30101]]

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

Acoustic Effects

Detailed descriptions of the potential effects of NEFSC's use of
acoustic sources are provided in other Federal Register notice for the
original incidental take regulations issued to the NEFSC (80 FR 39542;
January 9, 2015) and, more recently, other NMFS Science Centers (e.g.,
the ``Acoustic Effects'' section of the proposed rule for the taking of
marine mammals incidental to NMFS Alaska Fisheries Science Center
fisheries research (83 FR 37660; August 1, 2018), and the ``Potential
Effects of Underwater Sound'' section of the proposed rule for the
taking of marine mammals incidental to NMFS Southeast Fisheries Science
Center research (84 FR 6603; February 27, 2019). No significant new
information is available, and those discussions provide the necessary
adequate and relevant information regarding the potential effects of
NEFSC's specified activity on marine mammals and their habitat.
Therefore, we refer the reader to those documents rather than repeating
the information here.
Exposure to sound through the use of active acoustic systems for
research purposes may result in Level B harassment. However, as
detailed in the previously referenced discussions, Level A harassment
in the form of permanent threshold shift (PTS) is extremely unlikely to
occur, and we consider such effects discountable. With specific
reference to Level B harassment that may occur as a result of acoustic
exposure, we note that the analytical methods described in the
incidental take regulations for other NMFS Science Centers are retained
here. However, the state of science with regard to our understanding of
the likely potential effects of the use of systems like those used by
NEFSC has advanced in recent years, as have readily available
approaches to estimating the acoustic footprints of such sources, with
the result that we view this analysis as highly conservative. Although
more recent literature provides documentation of marine mammal
responses to the use of these and similar acoustic systems (e.g.,
Cholewiak et al., 2017; Quick et al., 2017; Varghese et al., 2020), the
described responses do not generally comport with the degree of
severity that should be associated with Level B harassment, as defined
by the MMPA. We retain the analytical approach described in the
incidental take regulations for other NMFS Science Centers for
consistency with existing analyses and for purposes of efficiency here,
and consider this acceptable because the approach provides a
conservative estimate of potential incidents of Level B harassment (see
``Estimated Take'' section of this notice). In summary, while we
propose to authorize the amount of take by Level B harassment indicated
in the ``Estimated Take'' section, and consider these potential takings
at face value in our negligible impact analysis, it is uncertain
whether use of these acoustic systems are likely to cause take at all,
much less at the estimated levels.

Potential Effects of Visual Disturbance

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

[[Page 30102]]

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

Anticipated Effects on Marine Mammal Habitat

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

[[Page 30103]]

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

Estimated Take

This section provides an estimate of the number of incidental takes
proposed for authorization through this IHA, which will inform both
NMFS' consideration of ``small numbers'' and the negligible impact
determination.
Except with respect to certain activities not pertinent here,
section 3(18) of the MMPA defines ``harassment'' as any act of pursuit,
torment, or annoyance, which (i) has the potential to injure a marine
mammal or marine mammal stock in the wild (Level A harassment); or (ii)
has the potential to disturb a marine mammal or marine mammal stock in
the wild by causing disruption of behavioral patterns, including, but
not limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Take of marine mammals incidental to NEFSC research activities
could occur as a result of (1) injury or mortality due to gear
interaction (Level A harassment, serious injury, or mortality); (2)
behavioral disturbance resulting from the use of active acoustic
sources (Level B harassment only); or (3) behavioral disturbance of
pinnipeds resulting from incidental approach of researchers and
research vessels (Level B harassment only). Below we describe how the
potential take is estimated.

Estimated Take Due to Gear Interaction

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

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

[[Page 30104]]

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

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

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

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

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

[[Page 30105]]

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

[[Page 30106]]

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

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

Estimated Take From Scientific Sonar

As described previously, we believe it unlikely that NEFSC use of
active acoustic sources is realistically likely to cause Level B
harassment of marine mammals. However, per NEFSC request, we
conservatively assume that, at worst, Level B harassment may result
from exposure to noise from these sources, and we carry forward the
analytical approach developed in support of the 2015 rule. At that
time, in order to quantify the potential for Level B harassment to
occur, NMFS developed an analytical framework considering
characteristics of the active acoustic systems, their expected patterns
of use, and characteristics of the marine mammal species that may
interact with them. The framework incorporated a number of deliberately
precautionary, simplifying assumptions, and the resulting exposure
estimates, which are presumed here to equate to take by Level B
harassment (as defined by the MMPA), may be seen as an overestimate of
the potential for such effects to occur as a result of the operation of
these systems.
Regarding the potential for Level A harassment in the form of
permanent threshold shift to occur, the very short duration sounds
emitted by these sources reduces the likely level of accumulated energy
an animal is exposed to. An individual would have to remain
exceptionally close to a sound source for unrealistic lengths of time,
suggesting the likelihood of injury occurring is exceedingly small.
Potential Level A harassment is therefore not considered further in
this analysis.
Authorized takes from the use of active acoustic scientific sonar
sources (e.g., echosounders) would be by Level B harassment only, in
the form of disruption of behavioral patterns for individual marine
mammals resulting from exposure to the use of active acoustic sources.
Based on the nature of the activity, Level A harassment is neither
anticipated nor proposed to be authorized.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes

[[Page 30107]]

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

Acoustic Thresholds

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

[[Page 30108]]

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

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

Marine Mammal Density

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

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

[[Page 30109]]

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

Using Area of Ensonification and Volumetric Density To Estimate
Exposures

Estimates of potential incidents of Level B harassment (i.e.,
potential exposure to levels of sound at or exceeding the 160 dB rms
threshold) are then calculated by using (1) the combined results from
output characteristics of each source and identification of the
predominant sources in terms of acoustic output; (2) their relative
annual usage patterns for each operational area; (3) a source-specific
determination made of the area of water associated with received sounds
at the extent of a depth boundary; and (4) determination of a
biologically-relevant volumetric density of marine mammal species in
each area. Estimates of Level B harassment by acoustic sources are the
product of the volume of water ensonified at 160 dB rms or higher for
the predominant sound source for each relevant survey and the
volumetric density of animals for each species. Source- and stratum-
specific exposure estimates are the product of these ensonified volumes
and the species-specific volumetric densities (Table 12). The general
take estimate equation for each source in each depth statrum is density
* (ensonified volume * line kms). The humpback whale and exposure to
sound from the EK 60 can be used to demonstrate the calculation:
1. EK60 ensonified volume; 0-200 m: 0.0142 km\2\ * 16058.8 km =
228.03 km\3\
2. Estimated exposures to sound >=160 dB rms; humpback whale; EK60,
LME region: (0.008 humpback whales/km\3\ * 228.03 km\3\ = 1.8 estimated
humpback exposures to SPLs >=160 dB rms resulting from use of the EK60
in the 0-200 m depth stratum.
Similar calculations were conducted for the ME 70 and DSM300 for
each animal in the LME region, with the exception of baleen whales, as
these sound sources are outside of their hearing range. Totals in
Tables 13 and 14 represent the total take of marine mammals, by
species, across all relevant surveys and sources rounded up to the
nearest whole number.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP04JN21.001

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[GRAPHIC] [TIFF OMITTED] TP04JN21.002

BILLING CODE 3510-22-C

Estimated Take Due to Physical Disturbance

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

[[Page 30112]]

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

Table 15--Seal Response to Disturbance
------------------------------------------------------------------------
Level Type of response Definition
------------------------------------------------------------------------
1....................... Alert................ Seal head orientation
or brief movement in
response to
disturbance, which may
include turning head
towards the
disturbance, craning
head and neck while
holding the body rigid
in a u-shaped
position, changing
from a lying to a
sitting position, or
brief movement of less
than twice the
animal's body length.
2....................... Movement............. Movements in response
to the source of
disturbance, ranging
from short withdrawals
at least twice the
animal's body length
to longer retreats
over the beach, or if
already moving a
change of direction of
greater than 90
degrees.
3....................... Flush................ All retreats (flushes)
to the water.
------------------------------------------------------------------------

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

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

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

Summary of Estimated Incidental Take

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

[[Page 30113]]

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

Proposed Mitigation

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

Mitigation for Marine Mammals and Their Habitat

The NEFSC has invested significant time and effort in identifying
technologies, practices, and equipment to minimize the impact of the
proposed activities on marine mammal species and stocks and their
habitat. The mitigation measures discussed here have been determined to
be both effective and practicable and, in some cases, have already been
implemented by the NEFSC. In addition, while not currently being
investigated, any future

[[Page 30114]]

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

General Measures

Visual Monitoring--Effective monitoring is a key step in
implementing mitigation measures and is achieved through regular marine
mammal watches. Marine mammal watches are a standard part of conducting
NEFSC fisheries research activities, particularly those activities that
use gears that are known to or potentially interact with marine
mammals. Marine mammal watches and monitoring occur during daylight
hours prior to deployment of gear (e.g., trawls, longline gear), and
they continue until gear is brought back on board. If marine mammals
are sighted in the area within 15 minutes prior to deployment of gear
and are considered to be at risk of interaction with the research gear,
then the sampling station is either moved or canceled or the activity
is suspended until there are no sightings for 15 minutes within 1nm of
sampling location. On smaller vessels, the Chief Scientist (CS) and the
vessel operator are typically those looking for marine mammals and
other protected species. When marine mammal researchers are on board
(distinct from marine mammal observers dedicated to monitoring for
potential gear interactions), they will record the estimated species
and numbers of animals present and their behavior. If marine mammal
researchers are not on board or available, then the CS in cooperation
with the vessel operator will monitor for marine mammals and provide
training as practical to bridge crew and other crew to observe and
record such information.
Coordination and Communication--When NEFSC survey effort is
conducted aboard NOAA-owned vessels, there are both vessel officers and
crew and a scientific party. Vessel officers and crew are not composed
of NEFSC staff but are employees of NOAA's Office of Marine and
Aviation Operations (OMAO), which is responsible for the management and
operation of NOAA fleet ships and aircraft and is composed of uniformed
officers of the NOAA Commissioned Corps as well as civilians. The
ship's officers and crew provide mission support and assistance to
embarked scientists, and the vessel's Commanding Officer (CO) has
ultimate responsibility for vessel and passenger safety and, therefore,
decision authority regarding the implementation of mitigation measures.
When NEFSC survey effort is conducted aboard cooperative platforms
(i.e., non-NOAA vessels), ultimate responsibility and decision
authority again rests with non-NEFSC personnel (i.e., vessel's master
or captain). Although the discussion throughout this Rule does not
always explicitly reference those with decision-making authority from
cooperative platforms, all mitigation measures apply with equal force
to non-NOAA vessels and personnel as they do to NOAA vessels and
personnel. Decision authority includes the implementation of mitigation
measures (e.g., whether to stop deployment of trawl gear upon
observation of marine mammals). The scientific party involved in any
NEFSC survey effort is composed, in part or whole, of NEFSC staff and
is led by a CS. Therefore, because the NEFSC--not OMAO or any other
entity that may have authority over survey platforms used by NEFSC--is
the applicant to whom any incidental take authorization issued under
the authority of these proposed regulations would be issued, we require
that the NEFSC take all necessary measures to coordinate and
communicate in advance of each specific survey with OMAO, or other
relevant parties, to ensure that all mitigation measures and monitoring
requirements described herein, as well as the specific manner of
implementation and relevant event-contingent decision-making processes,
are clearly understood and agreed-upon. This may involve description of
all required measures when submitting cruise instructions to OMAO or
when completing contracts with external entities. NEFSC will coordinate
and conduct briefings at the outset of each survey and as necessary
between the ship's crew (CO/master or designee(s), as appropriate) and
scientific party in order to explain responsibilities, communication
procedures, marine mammal monitoring protocol, and operational
procedures. The CS will be responsible for coordination with the
Officer on Deck (OOD; or equivalent on non-NOAA platforms) to ensure
that requirements, procedures, and decision-making processes are
understood and properly implemented.
The NEFSC will coordinate with the local Northeast Regional
Stranding Coordinator and the NMFS Stranding Coordinator for any
unusual protected species behavior and any stranding, beached live/
dead, or floating protected species that are encountered during field
research activities. If a large whale is alive and entangled in fishing
gear, the vessel will immediately call the U.S. Coast Guard at VHF Ch.
16 and/or the appropriate Marine Mammal Health and Stranding Response
Network for instructions. All entanglements (live or dead) and vessel
strikes must be reported immediately to the NOAA Fisheries Marine
Mammal Stranding Hotline at 888-755-6622. In addition, any entanglement
or vessel strike must be reported to the NMFS Protected Species
Incidental Take database (PSIT) within 48 hours of the event happening
(see Proposed Monitoring and Reporting).

Vessel Speed Limits and Course Alteration

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

[[Page 30115]]

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

Handling Procedures

Handling procedures are those taken to return a live animal to the
sea or process a dead animal. The NEFSC will implement a number of
handling protocols to minimize potential harm to marine mammals that
are incidentally taken during the course of fisheries research
activities. In general, protocols have already been prepared for use on
commercial fishing vessels. Although commercial fisheries take larger
quantities of marine mammals than fisheries research, the nature of
such takes by entanglement or capture are similar. Therefore, the NEFSC
would adopt commercial fishery disentanglement and release protocols
(summarized below), which should increase post-release survival.
Handling or disentangling marine mammals carries inherent safety risks,
and using best professional judgment and ensuring human safety is
paramount.
Captured or entangled live or injured marine mammals are released
from research gear and returned to the water as soon as possible with
no gear or as little gear remaining on the animal as possible. Animals
are released without removing them from the water if possible, and data
collection is conducted in such a manner as not to delay release of the
animal(s) or endanger the crew. NEFSC is responsible for training NEFSC
and partner affiliates on how to identify different species; handle and
bring marine mammals aboard a vessel; assess the level of
consciousness; remove fishing gear; and return marine mammals to water.
Human safety is always the paramount concern.

Move-On Rule

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

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

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

[[Page 30116]]

have been sighted that may be a risk of interaction with gear. Gear
will be retrieved immediately if marine mammals are believed to be at
risk of entanglement or observed as being entangled.
The acoustical cues generated during haulback may attract marine
mammals. The NEFSC will continue monitoring for the presence of marine
mammals during haulback. Care will be taken when emptying the trawl to
avoid damage to any marine mammals that may be caught in the gear but
are not visible upon retrieval. NEFSC will open the codend of the net
close to the deck/sorting area to avoid damage to animals that may be
caught in gear. The gear will be emptied as quickly as possible after
retrieval in order to determine whether or not marine mammals, or any
other protected species, are present.

Gillnet Surveys

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

Longline Surveys

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

Fyke Net Surveys

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

Pot/Trap Surveys

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

Dredge Surveys

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

Proposed Monitoring and Reporting

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

[[Page 30117]]

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

Visual Monitoring

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

Training

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

[[Page 30118]]

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

Reporting

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

[[Page 30119]]

developed to aid in SI determinations. NEFSC understands the critical
need to provide as much relevant information as possible about marine
mammal interactions to inform decisions regarding SI determinations. In
addition, the NEFSC will perform all necessary reporting to ensure that
any incidental M/SI is incorporated as appropriate into relevant SARs.

Negligible Impact Analysis and Determination

Introduction--NMFS has defined negligible impact as an impact
resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival (50 CFR 216.103). A negligible impact finding is based on the
lack of likely adverse effects on annual rates of recruitment or
survival (i.e., population-level effects). An estimate of the number of
takes alone is not enough information on which to base an impact
determination. In addition to considering estimates of the number of
marine mammals that might be ``taken'' by mortality, serious injury,
and Level A or Level B harassment, we consider other factors, such as
the likely nature of any behavioral responses (e.g., intensity,
duration), the context of any such responses (e.g., critical
reproductive time or location, migration), as well as effects on
habitat, and the likely effectiveness of mitigation. We also assess the
number, intensity, and context of estimated takes by evaluating this
information relative to population status. Consistent with the 1989
preamble for NMFS' implementing regulations (54 FR 40338; September 29,
1989), the impacts from other past and ongoing anthropogenic activities
are incorporated into this analysis via their impacts on the baseline
(e.g., as reflected in the regulatory status of the species, population
size and growth rate where known, ongoing sources of human-caused
mortality, and specific consideration of take by M/SI previously
authorized for other NMFS research activities).
We note here that the takes from potential gear interactions
enumerated below could result in non-serious injury, but their worst
potential outcome (mortality) is analyzed for the purposes of the
negligible impact determination. We discuss here the connection, and
differences, between the legal mechanisms for authorizing incidental
take under section 101(a)(5) for activities such as NEFSC's research
activities, and for authorizing incidental take from commercial
fisheries. In 1988, Congress amended the MMPA's provisions for
addressing incidental take of marine mammals in commercial fishing
operations. Congress directed NMFS to develop and recommend a new long-
term regime to govern such incidental taking (see MMC, 1994). The need
to develop a system suited to the unique circumstances of commercial
fishing operations led NMFS to suggest a new conceptual means and
associated regulatory framework. That concept, PBR, and a system for
developing plans containing regulatory and voluntary measures to reduce
incidental take for fisheries that exceed PBR were incorporated as
sections 117 and 118 in the 1994 amendments to the MMPA.
PBR is defined in section 3 of the MMPA (16 U.S.C. 1362(20)) as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (OSP) and,
although not controlling, can be one measure considered among other
factors when evaluating the effects of M/SI on a marine mammal species
or stock during the section 101(a)(5)(A) process. OSP is defined in
section 3 of the MMPA (16 U.S.C. 1362(9)) as the number of animals
which will result in the maximum productivity of the population or the
species, keeping in mind the carrying capacity of the habitat and the
health of the ecosystem of which they form a constituent element.
Through section 2, an overarching goal of the statute is to ensure that
each species or stock of marine mammal is maintained at or returned to
its OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time, and is the product of factors relating to
the minimum population estimate of the stock (Nmin), the
productivity rate of the stock at a small population size, and a
recovery factor. Determination of appropriate values for these three
elements incorporates significant precaution, such that application of
the parameter to the management of marine mammal stocks may be
reasonably certain to achieve the goals of the MMPA. For example,
calculation of Nmin incorporates the precision and
variability associated with abundance information, while also providing
reasonable assurance that the stock size is equal to or greater than
the estimate (Barlow et al., 1995). In general, the three factors are
developed on a stock-specific basis in consideration of one another in
order to produce conservative PBR values that appropriately account for
both imprecision that may be estimated, as well as potential bias
stemming from lack of knowledge (Wade, 1998).
Congress called for PBR to be applied within the management
framework for commercial fishing incidental take under section 118 of
the MMPA. As a result, PBR cannot be applied appropriately outside of
the section 118 regulatory framework without consideration of how it
applies within the section 118 framework, as well as how the other
statutory management frameworks in the MMPA differ from the framework
in section 118. PBR was not designed and is not used as an absolute
threshold limiting commercial fisheries. Rather, it serves as a means
to evaluate the relative impacts of those activities on marine mammal
stocks. Even where commercial fishing is causing M/SI at levels that
exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the
commercial fishing context under section 118, NMFS may develop a take
reduction plan, usually with the assistance of a take reduction team.
The take reduction plan will include measures to reduce and/or minimize
the taking of marine mammals by commercial fisheries to a level below
the stock's PBR. That is, where the total annual human-caused M/SI
exceeds PBR, NMFS is not required to halt fishing activities
contributing to total M/SI but rather utilizes the take reduction
process to further mitigate the effects of fishery activities via
additional bycatch reduction measures. In other words, under section
118 of the MMPA, PBR does not serve as a strict cap on the operation of
commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent PBR may be relevant when considering the
impacts of incidental take from activities other than commercial
fisheries, using it as the sole reason to deny (or issue) incidental
take authorization for those activities would be inconsistent with
Congress's intent under section 101(a)(5), NMFS' long-standing
regulatory definition of ``negligible impact,'' and the use of PBR
under section 118. The standard for authorizing incidental take for
activities other than commercial fisheries under section 101(a)(5)
continues to be, among other things that are not related to PBR,
whether the total taking will have a negligible impact on the species
or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to
make the negligible impact finding or authorize incidental take through
multi-year regulations, nor does its companion provision at
101(a)(5)(D) for authorizing

[[Page 30120]]

non-lethal incidental take under the same negligible-impact standard.
NMFS' MMPA implementing regulations state that take has a negligible
impact when it does not adversely affect the species or stock through
effects on annual rates of recruitment or survival--likewise without
reference to PBR. When Congress amended the MMPA in 1994 to add section
118 for commercial fishing, it did not alter the standards for
authorizing non-commercial fishing incidental take under section
101(a)(5), implicitly acknowledging that the negligible impact standard
under section 101(a)(5) is separate from the PBR metric under section
118. In fact, in 1994 Congress also amended section 101(a)(5)(E) (a
separate provision governing commercial fishing incidental take for
species listed under the Endangered Species Act) to add compliance with
the new section 118 but retained the standard of the negligible impact
finding under section 101(a)(5)(A) (and section 101(a)(5)(D)), showing
that Congress understood that the determination of negligible impact
and application of PBR may share certain features but are, in fact,
different.
Since the introduction of PBR in 1994, NMFS had used the concept
almost entirely within the context of implementing sections 117 and 118
and other commercial fisheries management-related provisions of the
MMPA. Prior to the Court's ruling in Conservation Council for Hawaii v.
National Marine Fisheries Service, 97 F. Supp. 3d 1210 (D. Haw. 2015)
and consideration of PBR in a series of section 101(a)(5) rulemakings,
there were a few examples where PBR had informed agency deliberations
under other MMPA sections and programs, such as playing a role in the
issuance of a few scientific research permits and subsistence takings.
But as the Court found when reviewing examples of past PBR
consideration in Georgia Aquarium v. Pritzker, 135 F. Supp. 3d 1280
(N.D. Ga. 2015), where NMFS had considered PBR outside the commercial
fisheries context, ``it has treated PBR as only one `quantitative tool'
and [has not used it] as the sole basis for its impact analyses.''
Further, the agency's thoughts regarding the appropriate role of PBR in
relation to MMPA programs outside the commercial fishing context have
evolved since the agency's early application of PBR to section
101(a)(5) decisions. Specifically, NMFS' denial of a request for
incidental take authorization for the U.S. Coast Guard in 1996
seemingly was based on the potential for lethal take in relation to PBR
and did not appear to consider other factors that might also have
informed the potential for ship strike in relation to negligible impact
(61 FR 54157; October 17, 1996).
The MMPA requires that PBR be estimated in SARs and that it be used
in applications related to the management of take incidental to
commercial fisheries (i.e., the take reduction planning process
described in section 118 of the MMPA and the determination of whether a
stock is ``strategic'' as defined in section 3), but nothing in the
statute requires the application of PBR outside the management of
commercial fisheries interactions with marine mammals. Nonetheless,
NMFS recognizes that as a quantitative metric, PBR may be useful as a
consideration when evaluating the impacts of other human-caused
activities on marine mammal stocks. Outside the commercial fishing
context, and in consideration of all known human-caused mortality, PBR
can help inform the potential effects of M/SI requested to be
authorized under 101(a)(5)(A). As noted by NMFS and the U.S. Fish and
Wildlife Service in our implementation regulations for the 1986
amendments to the MMPA (54 FR 40341, September 29, 1989), the Services
consider many factors, when available, in making a negligible impact
determination, including, but not limited to, the status of the species
or stock relative to OSP (if known); whether the recruitment rate for
the species or stock is increasing, decreasing, stable, or unknown; the
size and distribution of the population; and existing impacts and
environmental conditions. In this multi-factor analysis, PBR can be a
useful indicator for when, and to what extent, the agency should take
an especially close look at the circumstances associated with the
potential mortality, along with any other factors that could influence
annual rates of recruitment or survival.
When considering PBR during evaluation of effects of M/SI under
section 101(a)(5)(A), we first calculate a metric for each species or
stock that incorporates information regarding ongoing anthropogenic M/
SI into the PBR value (i.e., PBR minus the total annual anthropogenic
mortality/serious injury estimate in the SAR), which is called
``residual PBR'' (Wood et al., 2012). We first focus our analysis on
residual PBR because it incorporates anthropogenic mortality occurring
from other sources. If the ongoing human-caused mortality from other
sources does not exceed PBR, then residual PBR is a positive number,
and we consider how the anticipated or potential incidental M/SI from
the activities being evaluated compares to residual PBR using the
framework in the following paragraph. If the ongoing anthropogenic
mortality from other sources already exceeds PBR, then residual PBR is
a negative number and we consider the M/SI from the activities being
evaluated as described further below.
When ongoing total anthropogenic mortality from the applicant's
specified activities does not exceed PBR and residual PBR is a positive
number, as a simplifying analytical tool we first consider whether the
specified activities could cause incidental M/SI that is less than 10
percent of residual PBR (the ``insignificance threshold,'' see below).
If so, we consider M/SI from the specified activities to represent an
insignificant incremental increase in ongoing anthropogenic M/SI for
the marine mammal stock in question that alone (i.e., in the absence of
any other take) will not adversely affect annual rates of recruitment
and survival. As such, this amount of M/SI would not be expected to
affect rates of recruitment or survival in a manner resulting in more
than a negligible impact on the affected stock unless there are other
factors that could affect reproduction or survival, such as Level A
and/or Level B harassment, or other considerations such as information
that illustrates uncertainty involved in the calculation of PBR for
some stocks. In a few prior incidental take rulemakings, this threshold
was identified as the ``significance threshold,'' but it is more
accurately labeled an insignificance threshold, and so we use that
terminology here. Assuming that any additional incidental take by Level
A or Level B harassment from the activities in question would not
combine with the effects of the authorized M/SI to exceed the
negligible impact level, the anticipated M/SI caused by the activities
being evaluated would have a negligible impact on the species or stock.
However, M/SI above the 10 percent insignificance threshold does not
indicate that the M/SI associated with the specified activities is
approaching a level that would necessarily exceed negligible impact.
Rather, the 10 percent insignificance threshold is meant only to
identify instances where additional analysis of the anticipated M/SI is
not required because the negligible impact standard clearly will not be
exceeded on that basis alone.
Where the anticipated M/SI is near, at, or above residual PBR,
consideration of other factors (positive or negative), including those
outlined above, as well as mitigation is especially important to

[[Page 30121]]

assessing whether the M/SI will have a negligible impact on the species
or stock. PBR is a conservative metric and not sufficiently precise to
serve as an absolute predictor of population effects upon which
mortality caps would appropriately be based. For example, in some cases
stock abundance (which is one of three key inputs into the PBR
calculation) is underestimated because marine mammal survey data within
the U.S. EEZ are used to calculate the abundance even when the stock
range extends well beyond the U.S. EEZ. An underestimate of abundance
could result in an underestimate of PBR. Alternatively, we sometimes
may not have complete M/SI data beyond the U.S. EEZ to compare to PBR,
which could result in an overestimate of residual PBR. The accuracy and
certainty around the data that feed any PBR calculation, such as the
abundance estimates, must be carefully considered to evaluate whether
the calculated PBR accurately reflects the circumstances of the
particular stock. M/SI that exceeds PBR may still potentially be found
to be negligible in light of other factors that offset concern,
especially when robust mitigation and adaptive management provisions
are included.
PBR was designed as a tool for evaluating mortality and is defined
as the number of animals that can be removed while allowing that stock
to reach or maintain its OSP. OSP is defined as a population that falls
within a range from the population level that is the largest
supportable within the ecosystem to the population level that results
in maximum net productivity, and thus is an aspirational management
goal of the overall statute with no specific timeframe by which it
should be met. PBR is designed to ensure minimal deviation from this
overarching goal, with the formula for PBR typically ensuring that
growth towards OSP is not reduced by more than 10 percent (or
equilibrates to OSP 95 percent of the time). As PBR is applied by NMFS,
it provides that growth toward OSP is not reduced by more than 10
percent, which certainly allows a stock to reach or maintain its OSP in
a conservative and precautionary manner--and we can therefore clearly
conclude that if PBR were not exceeded, there would not be adverse
effects on the affected species or stocks. Nonetheless, it is equally
clear that in some cases the time to reach this aspirational OSP level
could be slowed by more than 10 percent (i.e., total human-caused
mortality in excess of PBR could be allowed) without adversely
affecting a species or stock through effects on its rates of
recruitment or survival. Thus even in situations where the inputs to
calculate PBR are thought to accurately represent factors such as the
species' or stock's abundance or productivity rate, it is still
possible for incidental take to have a negligible impact on the species
or stock even where M/SI exceeds residual PBR or PBR.
PBR is helpful in informing the analysis of the effects of
mortality on a species or stock because it is important from a
biological perspective to be able to consider how the total mortality
in a given year may affect the population. However, section
101(a)(5)(A) of the MMPA indicates that NMFS shall authorize the
requested incidental take from a specified activity if we find that the
total of such taking [i.e., from the specified activity] will have a
negligible impact on such species or stock. In other words, the task
under the statute is to evaluate the applicant's anticipated take in
relation to their take's impact on the species or stock, not other
entities' impacts on the species or stock. Neither the MMPA nor NMFS'
implementing regulations call for consideration of other unrelated
activities and their impacts on the species or stock. In fact, in
response to public comments on the implementing regulations NMFS
explained that such effects are not considered in making negligible
impact findings under section 101(a)(5), although the extent to which a
species or stock is being impacted by other anthropogenic activities is
not ignored. Such effects are reflected in the baseline of existing
impacts as reflected in the species' or stock's abundance,
distribution, reproductive rate, and other biological indicators.
Our evaluation of the M/SI for each of the species and stocks for
which M/SI could occur follows. In addition, all mortality authorized
for some of the same species or stocks over the next several years
pursuant to our final rulemakings for the NMFS Southeast Fisheries
Science Center (SEFSC) and U.S. Navy has been incorporated into the
residual PBR. By considering the maximum potential incidental M/SI in
relation to PBR and ongoing sources of anthropogenic mortality, we
begin our evaluation of whether the potential incremental addition of
M/SI through NEFSC research activities may affect the species' or
stocks' annual rates of recruitment or survival. We also consider the
interaction of those mortalities with incidental taking of that species
or stock by harassment pursuant to the specified activity.
We first consider maximum potential incidental M/SI for each stock
(Table 10) in consideration of NMFS's threshold for identifying
insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July
20, 2004)). By considering the maximum potential incidental M/SI in
relation to PBR and ongoing sources of anthropogenic mortality, we
begin our evaluation of whether the potential incremental addition of
M/SI through NEFSC research activities may affect the species' or
stock's annual rates of recruitment or survival. We also consider the
interaction of those mortalities with incidental taking of that species
or stock by harassment pursuant to the specified activity.

Summary of Estimated Incidental Take

Here we provide a summary of the total incidental take
authorization on an annual basis, as well as other information relevant
to the negligible impact analysis. Table 19 shows information relevant
to our negligible impact analysis concerning the annual amount of M/SI
take that could occur for each stock when considering the proposed
incidental take along with other sources of M/SI. As noted previously,
although some gear interactions may result in Level A harassment or the
release of an uninjured animal, for the purposes of the negligible
impact analysis, we assume that all of these takes could potentially be
in the form of M/SI.
We previously authorized take of marine mammals incidental to
fisheries research operations conducted by the SEFSC (see 85 FR 27028,
May 6, 2020) and U.S. Navy (84 FR 70712, December 23, 2019). This take
would occur to some of the same stocks for which we may authorize take
incidental to NEFSC fisheries research operations. Therefore, in order
to evaluate the likely impact of the take by M/SI in this rule, we
consider not only other ongoing sources of human-caused mortality but
the potential mortality authorized for SEFSC fisheries and ecosystem
research and U.S. Navy testing and training in the Atlantic Ocean. As
used in this document, other ongoing sources of human-caused
(anthropogenic) mortality refers to estimates of realized or actual
annual mortality reported in the SARs and does not include authorized
or unknown mortality. Below, we consider the total taking by M/SI for
NEFSC activities and previously authorized for SEFSC and Navy
activities together to produce a maximum annual M/SI take level
(including take of unidentified marine mammals that could accrue to any
relevant stock) and compare that value to the stock's PBR value,
considering ongoing sources of anthropogenic

[[Page 30122]]

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

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

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

Stocks With M/SI Below the Insignificance Threshold

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

Stocks With M/SI Above the Insignificance Threshold

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

Acoustic Effects

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

[[Page 30123]]

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

Conclusions

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

[[Page 30124]]

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
Please see Table 18 for information relating to this small numbers
analysis. The total amount of taking proposed for authorization is less
than one percent for a majority of stocks, and no more than 12 percent
for any given stock.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals will be taken relative to the population size
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

Adaptive Management

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

Request for Information

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

Classification

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

List of Subjects in 50 CFR Part 219

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

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

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

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

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

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

[[Page 30125]]

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

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

Sec. 219.31 Specified activity and specified geographical region.

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

Sec. 219.32 Effective dates.

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

Sec. 219.33 Permissible methods of taking.

(a) Under LOAs issued pursuant to Sec. Sec. 216.106 of this
chapter and 219.37, the Holder of the LOA (hereinafter ``NEFSC'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 219.31(b) of this chapter by Level B harassment
associated with use of active acoustic systems and physical or visual
disturbance of hauled out pinnipeds and by Level A harassment, serious
injury, or mortality associated with use of trawl, dredge, bottom and
pelagic longline, gillnet, pot and trap, and fyke net gears, provided
the activity is in compliance with all terms, conditions, and
requirements of the regulations in this subpart and the appropriate
LOA, provided the activity is in compliance with all terms, conditions,
and requirements of the regulations in this subpart and the appropriate
LOA.

Sec. 219.34 Prohibitions.

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

Sec. 219.35 Mitigation requirements.

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

[[Page 30126]]

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

[[Page 30127]]

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

Sec. 219.36 Requirements for monitoring and reporting.

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

[[Page 30128]]

mitigation and monitoring protocols, marine mammal identification,
completion of datasheets, and use of equipment. NEFSC may determine the
agenda for these trainings;
(2) NEFSC must also dedicate a portion of training to discussion of
best professional judgment, including use in any incidents of marine
mammal interaction and instructive examples where use of best
professional judgment was determined to be successful or unsuccessful;
and
(3) NEFSC must coordinate with NMFS' Southeast Fisheries Science
Center (SEFSC) regarding surveys conducted in the southern portion of
the Atlantic coast region, such that training and guidance related to
handling procedures and data collection is consistent.
(d) Handling procedures and data collection:
(1) NEFSC must develop and implement standardized marine mammal
handling, disentanglement, and data collection procedures. These
standard procedures will be subject to approval by NMFS Office of
Protected Resources (OPR);
(2) When practicable, for any marine mammal interaction involving
the release of a live animal, NEFSC must collect necessary data to
facilitate a serious injury determination;
(3) NEFSC must provide its relevant personnel with standard
guidance and training regarding handling of marine mammals, including
how to identify different species, bring/or not bring an individual
aboard a vessel, assess the level of consciousness, remove fishing
gear, return an individual to water, and log activities pertaining to
the interaction; and
(4) NEFSC must record such data on standardized forms, which will
be subject to approval by OPR. The data must be collected at a
sufficient level of detail (e.g., circumstances leading to the
interaction, extent of injury, condition upon release) to facilitate
serious injury determinations under the MMPA.
(e) Reporting:
(1) NEFSC must report all incidents of marine mammal interaction to
NMFS' Protected Species Incidental Take database within 48 hours of
occurrence; and
(2) NEFSC must provide written reports to OPR upon request
following any marine mammal interaction (animal captured or entangled
in research gear). In the event of a marine mammal interaction, these
reports must include details of survey effort, full descriptions of any
observations of the animals, the context (vessel and conditions),
decisions made and rationale for decisions made in vessel and gear
handling.
(3) The NEFSC must submit annual reports.
(i) The period of reporting will be one year beginning at the date
of issuance of the LOA. NEFSC must submit an annual summary report to
OPR not later than ninety days following the end of the reporting
period.
(ii) These reports must contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, ME70,
DSM300 (or equivalent sources) were predominant;
(B) Summary information regarding use of the following: All trawl
gear, all longline gear, all gillnet gear, all dredge gear, fyke net
gear, and rotary screw trap gear (including number of sets, hook hours,
tows, and tending frequency specific to each gear type);
(C) Accounts of all incidents of marine mammal interactions,
including circumstances of the event and descriptions of any mitigation
procedures implemented or not implemented and why;
(D) Summary information from the pinniped haulout censuses in the
and summary information related to any disturbance of pinnipeds,
including event-specific total counts of animals present, counts of
reactions according to a three-point scale of response severity, and
distance of closest approach;
(E) A written evaluation of the effectiveness of NEFSC mitigation
strategies in reducing the number of marine mammal interactions with
survey gear, including best professional judgment and suggestions for
changes to the mitigation strategies, if any;
(F) Final outcome of serious injury determinations for all
incidents of marine mammal interactions where the animal(s) were
released alive; and
(G) A summary of all relevant training provided by the NEFSC and
any coordination with the NMFS Southeast Fishery Science Center, the
Greater Atlantic Regional Fisheries Office, and the Southeast Regional
Office.
(f) Reporting of injured or dead marine mammals:
(1) In the event that personnel involved in the survey activities
covered by the authorization discover an injured or dead marine mammal,
NEFSC must report the incident to OPR and to the appropriate Northeast
Regional Stranding Coordinator as soon as feasible. The report must
include the following information:
(i) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the
animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if
the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s);
and
(vi) General circumstances under which the animal was discovered.
(2) In the event of a ship strike of a marine mammal by any vessel
involved in the activities covered by the authorization, SEFSC must
report the incident to OPR and to the appropriate Northeast Regional
Stranding Coordinator as soon as feasible. The report must include the
following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Species identification (if known) or description of the
animal(s) involved;
(iii) Vessel's speed during and leading up to the incident;
(iv) Vessel's course/heading and what operations were being
conducted (if applicable);
(v) Status of all sound sources in use;
(vi) Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
(vii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
(viii) Estimated size and length of animal that was struck;
(ix) Description of the behavior of the marine mammal immediately
preceding and following the strike;
(x) If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
(xi) Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and
(xii) To the extent practicable, photographs or video footage of
the animal(s).

Sec. 219.37 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these
regulations, NEFSC must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, NEFSC may apply for and obtain a renewal of the LOA.

[[Page 30129]]

(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, NEFSC must apply
for and obtain a modification of the LOA as described in Sec. 219.38.
(e) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the
Federal Register within thirty days of a determination.

Sec. 219.38 Renewals and modifications of Letters of Authorization.

(a) An LOA issued under Sec. 216.106 of this chapter and Sec.
219.37 for the activity identified in Sec. 219.31(a) must be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section); and
(2) OPR determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For an LOA modification or renewal requests by the applicant
that include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in in paragraph (c)(1) of this section) that do not change
the findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), OPR may publish a notice of proposed LOA in the
Federal Register, including the associated analysis of the change, and
solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
219.37 for the activity identified in Sec. 219.31(a) may be modified
by OPR under the following circumstances:
(1) OPR may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with NEFSC
regarding the practicability of the modifications) if doing so creates
a reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring set forth in the preamble for these
regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from NEFSC's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, OPR will
publish a notice of proposed LOA in the Federal Register and solicit
public comment.
(2) If OPR determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in Sec. 219.32(b), an LOA may be modified without
prior notice or opportunity for public comment. Notice would be
published in the Federal Register within thirty days of the action.

Sec. 219.39-219.40 [Reserved]

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

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