Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries and Ecosystem Research, 58434-58472 [2021-22858]

Download as PDF 58434 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 219 [Docket No. 210823–0166] 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: Final rule; notice of issuance of Letter of Authorization (LOA) AGENCY: NMFS’ Office of Protected Resources (OPR), upon request from NMFS’ Northeast Fisheries Science Center (NEFSC), hereby issues regulations to govern the unintentional taking of marine mammals incidental to fisheries research conducted in multiple specified geographical regions over the course of 5 years. These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. Upon publication of this final rule, NMFS will issue an LOA to NEFSC for the effective period of the final rule. DATES: Effective from October 21, 2021, through October 21, 2026. ADDRESSES: A copy of NEFSC’s application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.fisheries.noaa.gov/ action/incidental-take-authorizationnoaa-southwest-fisheries-science-centerfisheries-and. In case of problems accessing these documents, please call the contact listed below. FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: jspears on DSK121TN23PROD with RULES3 SUMMARY: Purpose and Need for Regulatory Action These regulations 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 mammals incidental to the NEFSC’s fisheries research activities in the Atlantic Ocean. We received an application from the NEFSC requesting 5-year regulations and authorization to take multiple species of marine mammals. Take would occur by Level B harassment incidental to the use of active acoustic devices, as well as by visual disturbance of pinnipeds in the Antarctic, and by Level A harassment, serious injury, or mortality incidental to the use of fisheries research gear. Please see ‘‘Background’’ below for definitions of harassment. Legal Authority for the Action Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the ‘‘least practicable adverse impact’’ on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this rule containing 5-year regulations, and for any subsequent LOAs. As directed by this legal authority, this rule contains mitigation, monitoring, and reporting requirements. Summary of Major Provisions Within the Regulations The following provides a summary the major provisions within this 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. • 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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. Background The MMPA prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other ‘‘means of effecting the least practicable adverse impact’’ on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as ‘‘mitigation’’); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. 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 E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations published a notice of proposed rulemaking in the Federal Register on June 4, 2021 (86 FR 30080), and requested comments and information from the public. We did not receive any comments on the proposed rule. These regulations are the second consecutive 5-year incidental take regulations issued in response to a petition from NEFSC. The initial regulations were finalized in 2016 and are effective through September 9, 2021 (81 FR 53061; August 11, 2016). A 5year LOA was issued to NEFSC pursuant to those regulations (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. The LOA issued under this final rule authorizes 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. Description of Proposed Activity jspears on DSK121TN23PROD with RULES3 Overview The NEFSC is the research arm of NMFS in the Greater Atlantic Region (Maine to Virginia). The NEFSC plans, develops, and manages a VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 5year period the 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 mortality or serious injury (M/SI). In addition, the NEFSC conducts hydrographic, oceanographic, and meteorological sampling concurrent with many of these surveys which PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 58435 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 regulations and associated LOA would be valid for 5 years from date of issuance. 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 (322 km) 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 (SE LME) and, rarely, north into the Scotian Shelf LME. Detailed descriptions of the NEFSC’s research areas were provided in the notice of proposed rulemaking (86 FR 30080, June 4, 2021). Those descriptions remain accurate and sufficient, and we refer the reader to that notice rather than reprinting the information here. BILLING CODE 3510–22–P E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations BILLING CODE 3510–22–C Detailed Description of Specific Activity A detailed description of NEFSC’s planned activities was provided in the VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 notice of proposed rulemaking (86 FR 30080, June 4, 2021) and is not repeated here except for the list of surveys provided in Table 1. No changes have PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 been made to the specified activities described therein. E:\FR\FM\21OCR3.SGM 21OCR3 ER21OC21.001</GPH> jspears on DSK121TN23PROD with RULES3 58436 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 58437 TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS Project name Survey description Gear Area of operation Specific gear Season Annual days at sea (DAS) Potential for take (Y/N) Long-Term Research Benthic Habitat Survey ... 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. Bottom Trawl ... Conductivity, Temperature, and Depth (CTD), Van Veen, Plankton trap, Beam Trawl, Dredge, Camera, Sonar. Georges Bank (GB). Summer or Fall 20 ..................... Y Bottom Trawl ... Net and twine shrimp trawl, fishing poles. New York Bight, Sandy Hook Bay. April–November 10 ..................... Y Bottom Trawl ... Ocean Shelf off MD. Summer ........... 11 ..................... Y Living Marine Resources Survey. Determine the distribution, abundance, and recruitment patterns for multiple species. Bottom Trawl ... Cape Hatteras to NJ. Spring .............. 11 ..................... Y Massachusetts Division of Marine Fisheries Bottom Trawl Surveys. The objective of this project is to track mature animals and determine juvenile abundance. This project provides data collection and analysis in support of single and multi-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. This project provides data collection and analysis in support of single and 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. Certification training for new NEFOP Observers. Bottom 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 ........ Territorial waters from RI to NH borders. U.S.-Canada to NH-MA border from shore to 300 ft depth. Spring and Fall 60–72 ............... Y Spring and Fall 30–50 ............... Y NEFSC Northern Shrimp Survey. The objective of this project is to determine the distribution and abundance of northern shrimp and collect related data. Bottom Trawl ... NEFSC Standard Bottom Trawl Surveys (BTS). This project monitors abundance and distribution of mature and juvenile fish and invertebrates. Testing and efficiency evaluation of the standardized 4seam, 3-bridle bottom trawl (doors, sweeps, protocols). Bottom Trawl ... Fish Collection for Laboratory Experiments. Habitat Mapping Survey NEAMAP Near Shore Trawl Program—Northern Segment. NEAMAP Near Shore Trawl Program—Southern Segment. jspears on DSK121TN23PROD with RULES3 NEFOP Observer Bottom Trawl Training Trips. NEFSC Bottom Trawl Survey Gear Trials. VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 PO 00000 Bottom Trawl ... Modified GoM shrimp otter trawl. Bottom Trawl ... 4-seam, 3-bridle net bottom trawl cookie sweep. Montauk, NY to Cape Hatteras, NC from 20 to 90 ft depth. Spring and Fall 30–50 ............... Y Bottom Trawl ... Contracted vessels’ trawl gear. 4 seam modified commercial shrimp trawl, positional sensors, mini-log, CTD. 4-seam, 3-bridle bottom trawl. Mid-Atlantic Bight (MAB) and GB. GOM ................ April–November (as needed), day trips. Summer ........... 18 ..................... Y 22 ..................... Y Cape Hatteras to Western Scotian Shelf. Spring and Fall 120 ................... Y 4-seam, 3-bridle bottom trawl, twin trawls. Cape Hatteras to Western Scotian Shelf. Fall ................... 14–20 ............... Y Bottom Trawl ... Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\21OCR3.SGM 21OCR3 58438 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS—Continued Project name Survey description Gear Specific gear Area of operation Season Annual days at sea (DAS) Potential for take (Y/N) Atlantic Herring Survey ... 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. Pelagic Trawl ... GOM and Northern GB. Fall ................... 34 ..................... Y Inshore and offshore GOM. Spring .............. 21 ..................... Y Deepwater Biodiversity ... This project collects fish, cephalopod and crustacean specimens from 500 to 2,000 m for tissue samples, specimen photos, and documentation of systematic characterization. Pelagic Trawl ... Western North Atlantic. Summer or Fall 16 ..................... Y Penobscot Estuarine Fish Community and Ecosystem Survey. 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, micro-zooplankton, mesozooplankton, pelagic fish and invertebrates, sea turtles, marine mammals, and sea birds. This program provides certification training for NEFOP Observers. 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 timeseries 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. Pelagic Trawl ... 4-seam, 3-bridle net bottom trawl, midwater rope trawl, acoustics. Modified midwater trawl that fishes at the surface via pair trawling. Deep-Sea acoustic/optic/ ocean ographic/ eDNA system, trawl camera system. Mamou shrimp trawl modified to fish at surface. Penobscot Estuary and Bay, ME. Spring, Summer and Fall. 12 ..................... Y Pelagic Trawl ... Mid-water trawls, bong nets, CTD, Acoustic Doppler Profiler (ADCP), acoustics. Cape Hatteras to Western Scotian Shelf. Summer and Fall. 80 ..................... Y Pelagic Trawl ... Various commercial nets. MAB and GB ... 5 ....................... Y Longline ........... Yankee and current commercial pelagic longline gear. Configured according to NMFS HMS Regulations. MD to Canada April–November as needed (day trips). Spring .............. 30 ..................... Y Longline ........... Florida style bottom longline. RI to FL within 40 fathoms. Spring .............. 47 ..................... Y Atlantic Salmon Trawl Survey. Northeast Integrated Pelagic Survey. NEFOP Observer MidWater Trawl Training Trip. Apex Predators Pelagic Longline Shark Survey. jspears on DSK121TN23PROD with RULES3 Apex Predators Bottom Longline Coastal Shark Survey. VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 PO 00000 Pelagic Trawl ... Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 58439 TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS—Continued jspears on DSK121TN23PROD with RULES3 Project name Survey description Apex Predators Pelagic This project uses opportunistic Nursery Grounds Study. 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. Cooperative Atlantic This project determines the loStates Shark Pupping cation of shark nurseries, and Nursery species composition, relative (COASTSPAN) abundance, distribution, and Longline and Gillnet migration patterns. It is used Surveys. 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 The objective of this project is Gulf of Maine Longline to conduct commercial coopProject. erative 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. NEFOP Observer Bottom This program provides certifiLongline Training Trips. cation training for NEFOP observers. Annual Assessments of These Atlantic Sea Scallop ReSea Scallop Abunsearch Set-Aside (RSA) rotadance and Distribution. tional 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. NEFOP Observer Scallop This program provides certifiDredge Training Trips. cation training for NEFOP observers. VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 PO 00000 Gear Specific gear Area of operation Season Annual days at sea (DAS) Potential for take (Y/N) Longline ........... Standard commercial pelagic longline gear. Configured according to NMFS Highly Migratory Species (HMS) Regulations. GB to Grand Banks off Newfoundland, Canada. Fall ................... 21–55 ............... Y Longline and Gillnet. Bottom Longline Gear, Anchored Sinking Gillnet. FL to RI ............ Summer ........... 25 or 40 ........... Y COOP WesternCentral Gulf of Maine hard bottom longline survey. Longline ........... Western GOM focused on sea mounts. Spring and Fall 60 stations/year eastern Maine, 90 stations/year western-central GOM. Y Longline ........... Commercial bottom longline gear. Scallop dredges, drop cameras, Other Habitat Camera (HabCam) Versions. MAB and GB ... April–November as needed (day trips). Dredge surveys Apr–Sept, Camera surveys June– Sept. 5 ....................... Y 50–100 ............. N Turtle deflector dredge. MAB and GB ... April–November as needed (day trips). 6 ....................... N Dredge ............. Dredge ............. Frm 00007 Fmt 4701 Sfmt 4700 GPM, Georges Bank, Mid-Atlantic. E:\FR\FM\21OCR3.SGM 21OCR3 58440 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS—Continued Project name Survey description Gear Specific gear Area of operation Season Annual days at sea (DAS) Potential for take (Y/N) Annual Standardized Sea Scallop Survey. 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. The objective of this project is to monitor tagged animals entering the Penobscot Bay System and exiting the system into the Gulf of Maine. Dredge ............. New Bedford dredge, HabCam V4. NC to GB ......... Summer ........... 36 ..................... N Dredge ............. Hydraulic-jet dredge. Southern VA to GB. Summer ........... 15 ..................... N Other ................ Penobscot River estuary and bay, GOM. Year round in GOM and Apr.–Nov. in nearshore areas. 10 ..................... Y Deep-sea Coral Survey .. The objective of this program is to determine the species diversity, community composition, distribution and extent of deep sea coral and sponge habitats. Other ................ Fixed position acoustic telemetry array receivers on moorings spaced 250– 400 m apart. Remotely Operated Vehicles (ROVs), CTD, towed cameras, ADCP, acoustics. Summer ........... 16 ..................... Y Diving Operations ........... 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. 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 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. Other ................ Wire mesh cages, lantern nets. Continental shelf margin, slope, and submarine canyons and deep basins: GOM to Virginia. Long Island Sound. Year round ....... 20 ..................... N Other ................ ADCP on vessel and moorings. Split-beam and DIDSON. GOM and Northern GB. Summer ........... 12 ..................... N Penobscot Bay and estuary. Spring .............. 25 ..................... Y 1 m and 2 m fyke nets. gillnet gear ....... Penobscot Bay and estuary. MAB and GB ... April–November 100 ................... N 10 ..................... N Other ................ ADP, CTD, Hydroacoustics. MAB ................. April–November as needed (day trips). Feb., May– June, Aug, and Nov. 10 ..................... N Other ................ Hudson River Coastal waters. Spring .............. 10 ..................... N 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. Other ................ CTD, YSI, multinutrient analyzer, Kemmerer bottle. AUV ................. June ................. 5 ....................... N Other ................ RST .................. MA state waters, GB. Estuaries on coastal Maine rivers. April 15–June 15. 60 ..................... N Other ................ Combination bottom trawl, shrimp trawl, gillnet. ADCP, CTD, YSI, Plankton net, video sled, Ponar grab, Kemmerer bottle, sonar. Long Island Sound. Summer ........... 30 ..................... Y Coastal waters off DE, MD and VA. August .............. 5 ....................... N Surfclam and Ocean Quahog Dredge Survey. Coastal Maine Telemetry Network. Gulf of Maine Ocean Observing System Mooring Cruise. Hydroacoustics Surveys Marine Estuaries Diadromous Survey. NEFOP Observer Gillnet Training Trips. Nutrients and Frontal Boundaries. Ocean Acidification ......... AUV Pilot Studies ........... Rotary Screw Trap (RSTs) Survey. jspears on DSK121TN23PROD with RULES3 Trawling to Support Finfish Aquaculture Research. DelMarVa Habitat Characterization. VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 PO 00000 Acoustic only ... Other ................ Other ................ Other ................ Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 58441 TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS—Continued Project name DelMarVa Reefs Survey Miscellaneous Fish Collections and Experimental Survey Gear Trials. Opportunistic Hydrographic Sampling. Monkfish RSA ................. Season Annual days at sea (DAS) Potential for take (Y/N) Coastal waters off DE, MD and VA. August .............. 5 ....................... N Bottom trawl, lobster and fish pots, beam trawl, seine net, trammel nets. New York Bight estuary waters. Spring and Fall not stated ......... Y Plankton net, expendable bathythermograph. Commercial gillnets of various sizes, short durations for sets. Southeast LME depths <300 m. Early Summer .. not stated ......... N Mid-Atlantic and Georges Bank. April–December (end of fishing year). 100–200 sets/ year. Sets left for 2–3 days. Y Area of operation Survey description Gear Specific gear 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. 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. Other ................ HABCAM, CTD Other ................ Other ................ Other ................ Short-Term Cooperative Projects Survey 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. Trawl ................ Bottom Trawl ... GOM, GB, SNE, MAB. Summer and Fall. 550 tows/year .. Y Trawl ................ Pelagic Trawl ... GOM, GB, SNE, MAB. Summer and Fall Summer and Fall. 30 tows/year .... Y Twin Bottom Trawl. Trawl nets with two types of sweeps or doors. GB, SNE, MAB Summer and Fall. 100 DAS .......... Y Pot survey ........ Pots and Traps Spring and fall for black sea bass. Year round for scup. 2,650 pot sets/ year. Y Conservation Engineering Projects. Gear and net conservation Cooperative work. Trawl ................ Bottom Trawl ... SNE, Rhode Island Bight, Nantucket Sound, MAB waters from shore to shelf edge. GOM, GB, SNE, MAB. Spring, Summer and Fall. Y Conservation Engineering Projects. Conservation Engineering Projects. 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. Trawl ................ Bottom Trawl ... Trawl ................ Bottom Trawl & Beam trawl. GOM, GB, SNE, MAB. GOM, GB, SNE, MAB. Spring, Summer and Fall. Spring, Summer and Fall. ∼500 tows per year total for all bottom trawl conservation projects. .......................... .......................... Y Dredge ............. Dredge ............. GB, SNE, MAB April–December (end of fishing year). >1,700 dredge tows/year for all dredge conservation projects. N Survey Projects ............... Trawl Comparison Research. jspears on DSK121TN23PROD with RULES3 Survey Projects ............... Conservation Engineering Projects. VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\21OCR3.SGM 21OCR3 Y 58442 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations TABLE 1—PROPOSED NEFSC FISHERIES RESEARCH SURVEYS—Continued Project name Survey description Specific gear Area of operation Season April–December (end of fishing year). Spring and Summer. Conservation Engineering Projects. Commercial hydrodynamic turtle deflector dredge testing. Dredge ............. Hydrodynamic dredge. GB, SNE, MAB Tagging Projects ............. Winter Flounder tagging projects. Winter flounder migration patterns. Trawl ................ Bottom Trawl & Otter trawl. Tagging Projects ............. Spiny dogfish tagging projects. Spiny dogfish tagging north and south of Cape Cod, and Cusk & NE multi-species tagging. Monkfish tagging projects ......... Hook & Line; Gillnet. Hook & Line and Gillnet. Coastal waters in GOM New Hampshire to Stonington/ Mt. Desert Island, ME. GOM and GB waters adjacent to Cape Cod, MA. Gillnet ............... Gillnet ............... GOM, SNE, MAB. 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 U.S. waters. A towed continuous plankton recording device is deployed from vessels of opportunity in the Gulf of Maine, monthly. Lobster Pots/ Traps. GOM, SNE, Summer and MAB (Inshore Fall. and Offshore). Rod and Reel .. Acoustic/mechanical releases for ropeless lobster gear and float lines. Acoustic tags ... Towed array ..... CPR ................. Tagging Projects ............. Ropeless Lobster Trap Research. Rod and Reel Tagging of Atlantic Salmon. Continuous Plankton Recorder (CPR) Transect Surveys: GOM. Comments and Responses We published a notice of proposed rulemaking in the Federal Register on June 4, 2021 (86 FR 30080), and requested comments and information from the public. During the 30-day comment period, we did not receive any substantive public comments. Changes From Proposed Rule to Final Rule There were no substantive changes from proposed rule to final rule; however, we have clarified reporting measures (to whom to report and when) and carried over two measures that were contained in the preamble of the proposed rule that were inadvertently omitted from the proposed regulation section. Overall, the final rule is substantively similar to the proposed rule. Description of Marine Mammals in the Area of Specified Activities jspears on DSK121TN23PROD with RULES3 Gear Sections 3 and 4 of NEFSC’s LOA application summarize available 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 Frm 00010 Fmt 4701 Sfmt 4700 September–December. Potential for take (Y/N) .......................... N up to 650 trawls/year. Y Long line: 5 sets/trip, 15 total Gillnet: 5 sets/trip, 15 total. 18–20 DAS, 10 short-duration sets/day, 180–200 sets total. 50–100 DAS, 500 sets, singles and up to 40 pots per set. Y Y N ME, Greenland Summer and Fall. 200–500 tags applied total. N ME to Nova Scotia. Summer and Fall. 24 DAS ............ N 9, 2015), NMFS’s 2016 Final Programmatic Environmental Assessment (EA) (available at https:// www.fisheries.noaa.gov/action/ incidental-take-authorization-noaafisheries-nefsc-fisheries-and-ecosystemresearch) and, where updates are necessary, NMFS 2021 Final 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/marinemammal-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 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 PO 00000 Spring, Summer and Fall. Annual days at sea (DAS) 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). E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations We provided a detailed description on each marine mammal species in the notice of proposed rulemaking for this action (86 FR 30080, June 4, 2020). Since that time, no new information, other than an update to North Atlantic right whale abundance (which is included in Table 2) is available that 58443 impact our analysis and determinations; therefore, that information is not repeated here. TABLE 2—MARINE MAMMAL PRESENT WITHIN THE NORTHEAST U.S. CONTINENTAL SHELF LARGE MARINE ECOSYSTEM Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR 3 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) 11 ............... 0.8 4 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 0.8 170 6 7 10.6 Nova Scotia ................... Western North Atlantic .. Gulf of Maine ................. E/D; Y E/D; Y E/D; Y Unk (n/a, 402, 1980–2008) ..... 21,968 ..................................... (0.31, 17,002, 2016) ................ 6,292 (1.02, 3,098, 2016) ....... 6,802 (0.24, 5,573, 2016) ....... 1,393 (0.15, 1,375, 2016) ....... 0 8 1.2 6.2 11 22 9 2.35 10 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 ..... Spinner dolphin ................. Rough-toothed dolphin ...... Bottlenose dolphin ............ Family Phocoenidae (porpoises): Harbor porpoise ................ 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) 11 .. 10,107 (0.27, 8,085, 2016) 11 .. Unk 81 81 0 0.2 0 Western North Atlantic .. –; N 5,744 (0.36, 4,282, 2016) ....... 43 0.2 1,125 7 289 Delphinus delphis delphis ....... Western North Atlantic .. –; N 172,825 (0.55, 112,531, 2007) Feresa attenuata ..................... Globicephala macrorhynchus .. G. melas .................................. Grampus griseus ..................... Lagenodelphis hosei ............... Lagenorhynchus acutus .......... Western Western Western Western Western Western .. .. .. .. .. .. –; –; –; –; –; –; N N N N N N Unk .......................................... 28,924 (0.24, 23,637, 2016) ... 39,215 (0.30, 30,627, 2016) ... 35,493 (0.19, 30,289, 2016) ... Unk .......................................... 93,233 (0.71, 54,443, 2016) ... Unk 236 306 303 Unk 544 Unk 160 21 54.3 0 26 L. albirostris ............................. Orcinus orca ............................ Peponocephala electra ........... Stenella attenuata ................... S. clymene .............................. S. coeruleoalba ....................... S. frontalis ............................... S. longirostris .......................... Steno bredanensis .................. Tursiops truncatus truncatus ... Western North Atlantic .. Western North Atlantic .. Western North Atlantic .. Western North Atlantic .. Western North Atlantic .. Western North Atlantic .. Western North Atlantic .. Western North Atlantic .. Western North Atlantic .. Western North Atlantic (WNA) Offshore. WNA Northern Migratory Coastal. –; –; –; –; –; –; –; –; –; –; N N N N N N N N N N 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) ... 4,102 (0.99, 2,045, 2016) ....... 136 (1.0, 67, 2016) ................. 62,851 (0.23, 51,914, 2016) ... 4,153 Unk Unk 44 21 529 320 20 0.7 519 0 0 0 0 0 0 0 0 0 28 –/D; Y 6,639 (0.41, 4,759, 2016) ....... 48 12 1.2–21.5 Gulf of Maine/Bay of Fundy Stock. –; N 95,543 (0.31, 74,034, 2016) ... 851 7 217 27,131 (0.19, 23,158, 2016) ... 75,834 (0.15, 66,884, 2012) ... 1,389 2,006 7 4,729 Phocoena phocoena phocoena. North North North North North North Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Order Carnivora—Superfamily Pinnipedia jspears on DSK121TN23PROD with RULES3 Family Phocidae (earless seals): Gray seal ........................... Harbor seal ....................... Halichoerus grypus grypus ..... Phoca vitulina vitulina ............. Western North Atlantic .. Western North Atlantic .. –; N –; N 7 350 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). VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\21OCR3.SGM 21OCR3 58444 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 4 Total jspears on DSK121TN23PROD with RULES3 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. 5 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). 6 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). 7 The NEFSC has historically taken this species in NEFSC research surveys (2004–2015) (see Tables 6–8). 8 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). 9 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). 10 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. 11 Pace et al., 2021. 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). 12 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. Potential Effects of Specified Activities on Marine Mammals and Their Habitat Detailed descriptions of the potential effects of the various elements of the NEFSC’s specified activity on marine mammals and their habitat were provided in the proposed rule (86 FR 30080, June 4, 2021) as well as the 2016 Programmatic EA. Additionally, detailed descriptions of the potential effects of similar specified activities have also been provided in other Federal Register notices (e.g., 81 FR 38516, June 13, 2016; 83 FR 37638; August 1, 2018; 84 FR 6576, February 27, 2019), and section 7 of NEFSC’s application provides a discussion of the potential effects of their specified activity, which we have reviewed for accuracy and completeness. No significant new information is available, and these discussions provide the necessary, adequate and relevant information regarding the potential effects of NEFSC’s specified activity on marine mammals and their habitat. Therefore, we refer the reader to these documents rather than repeating the information here. The referenced information includes a summary and discussion of the ways that components of the specified activity (e.g., gear deployment, use of active acoustic sources, visual disturbance) may impact marine mammals and their habitat. As stated previously, the use of certain research gears, including trawl nets, gillnets, longline gear, and fyke nets, has the potential to result in interaction with marine mammals. In the event of a marine mammal interaction with research gear, injury, serious injury, or mortality may result from entanglement or hooking. Exposure to sound through the use of active acoustic systems for research purposes may result in Level B harassment. However, as detailed in the previously referenced discussions, Level A harassment in the form of permanent threshold shift (PTS) is extremely unlikely to occur, and we consider such effects discountable. Finally, it is expected that hauled pinnipeds may be disturbed by approaching researchers VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 such that Level B harassment could occur. Ship strike is not a reasonably anticipated outcome of NEFSC research activities, given the small amount of distance covered by research vessels, use of observers, and their relatively slow speed in comparison to commercial shipping traffic (i.e., the primary cause of marine mammal vessel strikes). With specific reference to Level B harassment that may occur as a result of acoustic exposure, we note that the analytical methods from the original 2016 analysis 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 the preceding 5 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 2016 analytical approach 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. In summary, while we authorize the amount of take by Level B harassment indicated in the Estimated Take section, and consider these potential takings at face value in our negligible impact analysis, it is uncertain whether use of these acoustic systems are likely to cause take at all, much less at the estimated levels. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determinations section considers PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 the potential effects of the specified activity, the Estimated Take section, and the 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. Estimated Take This section provides an estimate of the number of incidental takes to be authorized through a LOA, 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 E:\FR\FM\21OCR3.SGM 21OCR3 58445 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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 5 minutes. While on deck, it was vocalizing and moving its tail up and down. The whale swam away upon release and appeared to be fine. Estimated length was 19 feet.’’ The NEFSC later classified this incidental take as a serious injury using NMFS criteria for such determinations published in January 2012 (Cole and Henry, 2013). 2 The NEFSC filed an incident report for this incidental take on April 4, 2015. TABLE 7—HISTORICAL INTERACTIONS WITH GILLNET GEAR Gear Survey Gillnet ................................... COASTSPAN ...................... Gillnet ................................... NEFOP Observer Gillnet Training Trips. NEFOP Observer Gillnet Training Trips. Number killed Species 11/29/2008 Number released alive 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) ......... Gray seal (1) ....................... Harbor porpoise (1) ............. 1 1 1 0 0 0 1 1 1 Gillnet ................................... jspears on DSK121TN23PROD with RULES3 Date 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). VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\21OCR3.SGM 21OCR3 58446 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations TABLE 8—HISTORICAL INTERACTIONS WITH FYKE NET GEAR Gear Survey Fyke Net ............................... Date Maine Estuaries Diadromous Survey. Number killed Species Total Harbor seal .......................... 1 0 1 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 10/25/2010 Number released alive 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 5-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 5-year totals for this 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 Species Trawl ........................................................................................... Short-beaked common dolphin .................................................. Minke whale ............................................................................... Gray seal .................................................................................... Common bottlenose dolphin ...................................................... Harbor porpoise ......................................................................... Gray seal .................................................................................... Harbor seal ................................................................................ Gillnet .......................................................................................... Fyke net ...................................................................................... jspears on DSK121TN23PROD with RULES3 Average rate per year (2004–2020) Gear The NEFSC 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 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, VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 5-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 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 0.27 0.06 0.06 0.06 0.06 0.06 0.06 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., 5 total). On the basis of similar vulnerability of other dolphin species, the NEFSC estimates two potential takes over the 5-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 5-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 E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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 5-year authorization period. Thus, for harbor and gray seals, we propose to authorize a total taking by M/SI of 5 individuals over the 5-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 5 takes of harbor seals in gillnets over the 5-year authorization period. For this species, we propose to authorize a total taking by M/SI of 5 individuals over the 5-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 shortbeaked common dolphin in gillnet gear over the 5-year authorization period. For these species, we propose to authorize a total taking by M/SI of one individual (per species) over the 5-year timespan (Table 10). VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 Mitigation and 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 5year 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 5-year authorization period. Thus, for harbor and gray seals, we propose to authorize a total taking by M/SI of 5 individual over the 5-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 5year authorization period. Thus, for gray seals, we propose to authorize a total taking by M/SI of 5 individual over the 5-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 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 58447 informed decision on the probability of specific cetacean and large whale interactions with longline gear, many other factors were also taken into account (e.g., relative survey effort, survey location, similarity in gear type, animal behavior, prior history of NEFSC interactions with longline gear, etc.). Therefore, there are several species that have been shown to interact with commercial longline fisheries but for which the NEFSC is not requesting take. For example, the NEFSC is not requesting take of large whales, 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 issuance of this amount of take, by species, is reasonably conservative. The amount of take authorized, by M/ SI, is identical to that 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 E:\FR\FM\21OCR3.SGM 21OCR3 58448 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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, fyke net 1 5-Year total, longline 1 0 0 1 0 1 0 5 5 5 5 5 0 1 0 0 1 0 1 1 0 0 0 5-Year 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 jspears on DSK121TN23PROD with RULES3 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 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 available (e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the take estimate. Acoustic Thresholds NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). As described in detail for 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 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 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 decibels (dB) re 1 microPascal (mPa) root mean square (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 kilohertz (kHz) (see Table 2). Examination of these sources considers operational patterns of use E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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 (18 kHz). 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. VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 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 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 58449 predominant in each depth stratum for all line km (i.e., the total linear distance traveled during acoustic survey operations) when multiple sources were in operation. This was accounted for in estimating overall exposures for species that utilize both depth strata (deep divers). For each ecosystem area, the total number of line km that would be surveyed was determined, as was the relative percentage of surveyed line km associated with each source. The total line-kilometers for each survey, the dominant source, the effective percentages associated with each depth, and the effective total volume ensonified are given below (Table 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, July 9, 2015). 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 E:\FR\FM\21OCR3.SGM 21OCR3 58450 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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, July 9, 2015), marine mammals were categorized into two generalized depth strata: surfaceassociated (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, August 11, 2016). 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 >200 m LME area density (per km2) 1 2 LME volumetric density (per km3) 3 Offshore density (per km2) 2 4 Offshore Volumetric density (per km3) 5 Cetaceans jspears on DSK121TN23PROD with RULES3 NARW 6 ........................................................................ 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 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 ................................................. VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 PO 00000 X X X X X X .............. .............. .............. X X .............. .............. .............. X X .............. .............. X X X X X X X X Frm 00018 .............. .............. .............. .............. .............. .............. X X X .............. .............. X X X .............. .............. X X .............. .............. .............. .............. .............. .............. .............. .............. Fmt 4701 Sfmt 4700 0.0030 0.0016 0.0048 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 0.0150 0.00800 0.02400 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 E:\FR\FM\21OCR3.SGM 21OCR3 0 0 0.00005 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 0.00025 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 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 58451 TABLE 12—MARINE MAMMAL AND VOLUMETRIC DENSITY IN THE ENSONFIED AREAS—Continued Dive profile/vertical habitat Common name 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 .............. .............. .............. .............. .............. LME area density (per km2) 1 2 LME volumetric density (per km3) 3 Offshore Volumetric density (per km3) 5 Offshore density (per km2) 2 4 0.0032 0 0 0.1359 0.0403 0.01600 0 0 0.6795 0.20150 0 0.0002 0.1615 0 0 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). 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). 2 Source: Using Area of Ensonification and Volumetric Density to Estimate Exposures jspears on DSK121TN23PROD with RULES3 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 19:26 Oct 20, 2021 Jkt 256001 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 00019 Fmt 4701 Sfmt 4700 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\21OCR3.SGM 21OCR3 VerDate Sep<11>2014 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 19:26 Oct 20, 2021 Jkt 256001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4725 E:\FR\FM\21OCR3.SGM 21OCR3 ER21OC21.002</GPH> jspears on DSK121TN23PROD with RULES3 58452 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 19:26 Oct 20, 2021 Jkt 256001 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 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 58453 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 April–November; and rotary screw trap surveys from April-June. E:\FR\FM\21OCR3.SGM 21OCR3 ER21OC21.003</GPH> jspears on DSK121TN23PROD with RULES3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 58454 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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. 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. 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 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, August 11, 2016) estimated that all hauled out seals 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 5year takes of harbor and gray seals due to behavioral harassment during surveys in the lower estuary of the Penobscot River. 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 rule, it is assumed that 10 percent of the animals hauled out could 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 SURVEY Estimated number of seals hauled out 1 Common name Harbor seals ....................................... Gray seals .......................................... 400 30 jspears on DSK121TN23PROD with RULES3 Summary of Estimated Incidental Take Here we provide summary tables detailing the total incidental take VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 Estimated number of seals potentially disturbed per day 2 Estimated annual instances of harassment Fyke net 100 DAS 40 3 Mamou Shrimp Trawl 12 DAS 4,000 300 authorized on an annual basis for the NEFSC in the Atlantic coast region, as PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 480 36 Total 4,480 336 5-Year total harassment takes requested all gears 22,400 1,680 well as other information relevant to the negligible impact analyses. E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 58455 TABLE 18—TOTAL TAKE AUTHORIZED, BY M/SI AND LEVEL B HARASSMENT, OVER 5 YEARS [2021–2026] Annual level B take 5-Year total M/SI 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 dolphin 1 ............................................................. 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 LME Total (percent 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. jspears on DSK121TN23PROD with RULES3 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 19:26 Oct 20, 2021 Jkt 256001 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 00023 Fmt 4701 Sfmt 4700 (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\21OCR3.SGM 21OCR3 58456 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations jspears on DSK121TN23PROD with RULES3 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 19:26 Oct 20, 2021 Jkt 256001 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 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 00024 Fmt 4701 Sfmt 4700 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 Monitoring and Reporting). Vessel Speed Limits and Course Alteration When NEFSC research vessels are actively sampling, cruise speeds are less than 5 knots (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 October 10, 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-speciesconservation/reducing-vessel-strikesnorth-atlantic-right-whales#vesselspeed-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 (19.8 m) E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations will abide 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. jspears on DSK121TN23PROD with RULES3 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 58457 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 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 CS. 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 E:\FR\FM\21OCR3.SGM 21OCR3 58458 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations jspears on DSK121TN23PROD with RULES3 mammals or other protected species 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 close to the deck/sorting area and 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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. NEFSC must ensure that surveys deploy acoustic deterrent devices on gillnets in areas where required for commercial fisheries. NEFSC must ensure that the devices are operating properly before deploying the net. 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. If marine mammals are observed within 100 m of the station, NEFSC will delay setting the gear until PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 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 nm 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 these measures, NMFS has determined that the 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. E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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 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 specified geographic region. 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 the Mitigation section. Dedicated marine mammal visual monitoring occurs as described (1) for some period prior to deployment of most research gear; (2) throughout deployment and active fishing of all research gears; (3) for some period prior to retrieval of longline gear; and (4) throughout retrieval of all research gear. This visual monitoring is performed by trained 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 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 58459 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 suite of monitoring and operational procedures required through this rulemaking 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 E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 58460 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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 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 GARFO, NEFSC fishery scientists, NOAA research vessel personnel, and other NMFS staff as appropriate to review data collection, marine mammal VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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; PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 (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 E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations jspears on DSK121TN23PROD with RULES3 mammals that are released alive. NEFSC will require that the CS complete data forms and address supplemental questions, both of which have been developed to aid in SI determinations. NEFSC understands the critical need to provide as much relevant information as possible about marine mammal interactions to inform decisions regarding SI determinations. In addition, the NEFSC will perform all necessary reporting to ensure that any incidental M/SI is incorporated as appropriate into relevant SARs. 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 58461 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 E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 58462 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations make the negligible impact finding or authorize incidental take through multiyear regulations, nor does its companion provision at 101(a)(5)(D) for authorizing non-lethal incidental take under the same negligible-impact standard. NMFS’ MMPA implementing regulations state that take has a negligible impact when it does not adversely affect the species or stock through effects on annual rates of recruitment or survival—likewise without reference to PBR. When Congress amended the MMPA in 1994 to add section 118 for commercial fishing, it did not alter the standards for authorizing non-commercial fishing incidental take under section 101(a)(5), implicitly acknowledging that the negligible impact standard under section 101(a)(5) is separate from the PBR metric under section 118. In fact, in 1994 Congress also amended section 101(a)(5)(E) (a separate provision governing commercial fishing incidental take for species listed under the 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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- PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 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. E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations Where the anticipated M/SI is near, at, or above residual PBR, consideration of other factors (positive or negative), including those outlined above, as well as mitigation is especially important to assessing whether the M/SI will have a negligible impact on the species or stock. PBR is a conservative metric and not sufficiently precise to serve as an absolute predictor of population effects upon which mortality caps would appropriately be based. For example, in some cases stock abundance (which is one of three key inputs into the PBR calculation) is underestimated because marine mammal survey data within the U.S. Exclusive Economic Zone (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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 58463 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 authorized 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 E:\FR\FM\21OCR3.SGM 21OCR3 58464 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations maximum annual M/SI take level (including take of unidentified marine mammals that could accrue to any relevant stock) and compare that value to the stock’s PBR value, considering ongoing sources of anthropogenic mortality. 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 ANNUAL TAKE BY MORTALITY OR SERIOUS INJURY AUTHORIZATION, 2021–2026. Stock abundance 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 ........................... Canadian East Coast ........ W North Atlantic ................ (offshore stock) ................. (N migratory stock) ........... (S migratory stock) ............ GoM/Bay of Fundy ............ W North Atlantic ................ 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 take of grey seals is above the insignificance threshold. jspears on DSK121TN23PROD with RULES3 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 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; Whitebeaked 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. VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 NEFSC M/SI take (annual) Annual M/SI PBR Navy AFTT take by M/SI r-PBR Total M/SI take r-PBR (percent) 2,591 35,493 93,233 536,016 1 0.6 0.6 0.4 170 303 544 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 4153 0.63 0.24 0.12 0.01 172,974 1.4 1,452 399 0.8 0 1052.2 0.13 39,921 62,851 6,639 3,751 95,543 75,834 27,131 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 .................. 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 determined the 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 take authorized 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 PO 00000 SEFSC take by M/SI Frm 00032 Fmt 4701 Sfmt 4700 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 percent CI: ¥2.3–1.9) to 26.3 percent (95 percent 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 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 E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations short-term, minor behavioral reactions to exposure such as moving away from the source. Some marine mammals (e.g., 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 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 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 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 58465 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 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 monitoring and mitigation measures, NMFS 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\21OCR3.SGM 21OCR3 58466 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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 take authorized 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 mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks. jspears on DSK121TN23PROD with RULES3 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 19:26 Oct 20, 2021 Jkt 256001 GARFO issued a biological opinion to the NEFSC (concerning the conduct of the specified activities) and OPR (concerning issuance of the LOA) on October 8, 2021, which concluded that the proposed actions are not likely to adversely affect any listed marine mammal species or adversely modify critical habitat. 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/ draft-supplemental-programmaticenvironmental-assessment-nefscresearch-now-available. NMFS evaluated information in the PEA, SPEA, and NEFSC’s application, as well as the 2016 FONSI, and determined that the initial FONSI is sufficient to support issuance of these PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 regulations and subsequent 5-year Letter of Authorization. NMFS has documented this determination in a memorandum for the record. National Marine Sanctuaries Act (NMSA) On September 16, 2015, NMFS OPR Permits and Conservation Division, requested consultation under Section 304(d) of the NMSA on the issuance of regulations and a Letter of Authorization to the NEFSC from 20162021. Similarly, the NEFSC initiated consultation pursuant to section 304(d) of the NMSA on August 4, 2015, to conduct fisheries research activities within Stellwagen Bank National Marine Sanctuary (NMS). On September 23, 2015, the Office of National Marine Sanctuaries (ONMS) responded with comments and recommendations which were incorporated into the NEFSC’s PEA and NMFS final rule. The survey activities being considered under this final rule or their potential impacts on marine mammals are not significantly different from the activities considered in the 2015 consultation. Therefore, PR1 has determined that re-initiation of NMSA 304(d) consultation is not required for the issuance of the 2021– 2026 LOA because the changes in the action and potential impacts do not meet the triggers for re-initiation of consultation. 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 5-year regulations for activities that have been associated with marine mammal mortality. The reporting requirements associated with this rule are designed to provide OPR with monitoring data from the previous year to allow consideration of whether any changes are appropriate. OPR and the 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 E:\FR\FM\21OCR3.SGM 21OCR3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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. jspears on DSK121TN23PROD with RULES3 Classification The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866. Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this 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 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 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. Waiver of Delay in Effective Date NMFS has determined that there is good cause under the Administrative Procedure Act (5 U.S.C 553(d)(3)) to waive the 30-day delay in the effective date of this final rule. No individual or entity other than the NEFSC is affected by the provisions of these regulations. The NEFSC requested that this final rule take effect on September 10, 2021, to accommodate the NEFSC’s LOA expiring on September 9, 2021, so as to VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 not cause a disruption in research activities. The waiver of the 30-day delay of the effective date of the final rule will ensure that the MMPA final rule and LOA are in place as soon as possible to minimize the lapse in MMPA take coverage. Any delay in finalizing the rule would result in either: (1) A suspension of planned research, which would disrupt the provision of vital data necessary for effective management of fisheries; or (2) the NEFSC’s procedural noncompliance with the MMPA (should the NEFSC conduct research without an LOA), thereby resulting in the potential for unauthorized takes of marine mammals. Moreover, the NEFSC is ready to implement the regulations immediately and requested the waiver. For these reasons, NMFS finds good cause to waive the 30-day delay in the effective date. In addition, the rule authorizes incidental take of marine mammals that would otherwise be prohibited under the statute. Therefore, by granting an exception to the NEFSC, the rule will relieve restrictions under the MMPA, which provides a separate basis for waiving the 30-day effective date for the rule. List of Subjects in 50 CFR Part 219 Endangered and threatened species, Fish, Marine mammals, Reporting and recordkeeping requirements, Wildlife. Dated: October 15, 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 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: ■ ■ 58467 219.39–219.40 [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) This subpart applies 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 October 21, 2021, through October 21, 2026. § 219.33 ≤Permissible methods of taking. 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) 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. Authority: 16 U.S.C. 1361 et seq. § 219.34 2. Add subpart D to read as follows: 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; 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. PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\21OCR3.SGM ≤Prohibitions. 21OCR3 58468 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations (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. jspears on DSK121TN23PROD with RULES3 § 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 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 (19.8 m) or longer is traveling within a North Atlantic right whale Seasonal Management Area, the vessel shall not VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 exceed 10 knots in speed. When practicable, all NEFSC vessels traveling within a Dynamic Management Area or acoustically-triggered Slow Zone should 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) NEFSC must implement handling and/or disentanglement protocols as specified in the guidance provided to NEFSC survey personnel; and (9) 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 nm 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, NEFSC may 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. NMFS may use best professional judgement in making this decision; (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. NEFSC may use best professional judgment in making this decision; (5) If trawling operations have been suspended because of the presence of marine mammals, NEFSC may resume PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 only after there are no sightings for 15 minutes within 1nm of sampling location; (6) 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; (7) NEFSC must implement standard survey protocols to minimize potential for marine mammal interactions. These protocols include, but are not limited to: (i) 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; (ii) Trawl tow distances of no more than 3 nm; (iii) 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; (iv) Sharp course changes will be avoided in all surveys; (v) Open the codend of the net close to the deck/sorting area to avoid damage to animals that may be caught in gear; and (vi) Gear will be emptied as close to the deck/sorting area and as quickly as possible after retrieval; and (vii) 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 E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations 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 close to the deck/sorting area and 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 1nm area of sampling location. In no case will longlines be deployed if animals are considered at-risk of interaction; and (7) NEFSC must implement standard survey protocols, including maximum soak durations and a prohibition on chumming. (e) Gillnet survey protocols. (1) The NEFSC must deploy gillnet gear as soon as is practicable upon arrival at the sampling station; (2) The NEFSC 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 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 commerciallyhired 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 must carefully retrieve the gear as quickly as possible. The NEFSC may use best professional judgment in making this decision; PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 58469 (5) The NEFSC 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 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 maintain visual monitoring effort during the entire period of gear deployment or retrieval. If marine mammals are sighted during the soak and are deemed at risk of interaction, the gillnet must be pulled. 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; (8) 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; (9) For the COASTSPAN gillnet surveys, the NEFSC will actively monitor for potential bottlenose dolphin entanglements by hand-checking the gillnet every 30 minutes or if a disturbance in the net is observed. In the unexpected case of a bottlenose dolphin entanglement resulting in mortality, NEFSC must request and arrange for expedited genetic sampling for stock determination. NEFSC must also photograph the dorsal fin and submit the image to the NMFS Southeast Stranding Coordinator for identification/matching to bottlenose dolphins in the Mid-Atlantic Bottlenose Dolphin Photo-Identification Catalog; (10) NEFSC must pull gear immediately if disturbance in the nets is observed. (11) All gillnets will be designed with minimal net slack and excess floating and trailing lines will be removed. (12) 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, (13) On Observer Training cruises, acoustic pingers and weak links may be used on all gillnets consistent with the regulations and TRPs for commercial fisheries. NEFSC must ensure that surveys deploy acoustic deterrent devices on gillnets in areas where required for commercial fisheries. NEFSC must ensure that the devices are E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 58470 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations operating properly before deploying the net. (f) Pot and trap survey protocols. (1) The NEFSC must deploy pot gear as soon as is practicable upon arrival at the sampling station; (2) The NEFSC must initiate marine mammal watches (visual observation) no less than 15 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 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 may use best professional judgment in making this decision; and (5) The NEFSC 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. (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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 using fyke nets equal or greater to 2 m. (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 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, midwater, 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 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 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, 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. (i) NEFSC must report all incidents of marine mammal interaction to NMFS’ Protected Species E:\FR\FM\21OCR3.SGM 21OCR3 jspears on DSK121TN23PROD with RULES3 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations Incidental Take database within 48 hours of occurrence. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made and rationale for decisions made in vessel and gear handling. (ii) The NEFSC must submit annual reports. 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. 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. (iii) Reporting of North Atlantic right whales and injured or dead marine mammals: (A) In the event that the NEFSC observes a North Atlantic right whale during a survey, they must report the sighting as soon as possible to 866–755– 6622 if the sighting occurs in the VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 Northeast region (VA to ME) or to 877– WHALE–HELP if the sighting occurs in the Southeast region (FL to NC). The NEFSC must also report the sighting to the U.S. Coast Guard via Channel 16. (B) In the event that the NEFSC discovers an injured or dead marine mammal, NEFSC must report the incident to OPR (PR.ITP.MonitoringReports@noaa.gov), 866–755–6622 in the Northeast region (VA to ME) and 877–WHALE–HELP in the Southeast region (FL to NC). (C) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a prohibited manner, NEFSC 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 immediately reported to the contacts in 6(c)(ii). OPR will review the circumstances of the prohibited take and work with NEFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the 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. (3) In the event of a ship strike of a marine mammal by any vessel involved in the activities covered by the authorization, NEFSC must report the incident to OPR and to the appropriate Regional Stranding Network 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 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 58471 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. (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 30 days of a determination. § 219.38 ≤Renewals and modifications of Letters of Authorization. (a) A 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 E:\FR\FM\21OCR3.SGM 21OCR3 58472 Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Rules and Regulations jspears on DSK121TN23PROD with RULES3 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 VerDate Sep<11>2014 19:26 Oct 20, 2021 Jkt 256001 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 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 PO 00000 Frm 00040 Fmt 4701 Sfmt 9990 (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), a LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action. § § 219.39–219.40 [Reserved] [FR Doc. 2021–22858 Filed 10–20–21; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\21OCR3.SGM 21OCR3

Agencies

[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Rules and Regulations]
[Pages 58434-58472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22858]

[[Page 58433]]

Vol. 86

Thursday,

No. 201

October 21, 2021

Part III

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; Final Rule

Federal Register / Vol. 86 , No. 201 / Thursday, October 21, 2021 /
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 210823-0166]
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: Final rule; notice of issuance of Letter of Authorization (LOA)

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

DATES: Effective from October 21, 2021, through October 21, 2026.

ADDRESSES: A copy of NEFSC's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-southwest-fisheries-science-center-fisheries-and. In
case of problems accessing these documents, please call the contact
listed below.

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

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

These regulations 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 5-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B harassment incidental to the use
of active acoustic devices, as well as by visual disturbance of
pinnipeds in the Antarctic, and by Level A harassment, serious injury,
or mortality incidental to the use of fisheries research gear. Please
see ``Background'' below for definitions of harassment.

Legal Authority for the Action

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

Summary of Major Provisions Within the Regulations

The following provides a summary the major provisions within this
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.
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.

Background

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

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

[[Page 58435]]

published a notice of proposed rulemaking in the Federal Register on
June 4, 2021 (86 FR 30080), and requested comments and information from
the public. We did not receive any comments on the proposed rule.
These regulations are the second consecutive 5-year incidental take
regulations issued in response to a petition from NEFSC. The initial
regulations were finalized in 2016 and are effective through September
9, 2021 (81 FR 53061; August 11, 2016). A 5-year LOA was issued to
NEFSC pursuant to those regulations (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.
The LOA issued under this final rule authorizes 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.

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
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 mortality
or serious injury (M/SI). 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 regulations and associated LOA
would be valid for 5 years from date of issuance.

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 (322 km)
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 (SE LME) and, rarely, north into
the Scotian Shelf LME. Detailed descriptions of the NEFSC's research
areas were provided in the notice of proposed rulemaking (86 FR 30080,
June 4, 2021). Those descriptions remain accurate and sufficient, and
we refer the reader to that notice rather than reprinting the
information here.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TR21OC21.001

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

A detailed description of NEFSC's planned activities was provided
in the notice of proposed rulemaking (86 FR 30080, June 4, 2021) and is
not repeated here except for the list of surveys provided in Table 1.
No changes have been made to the specified activities described
therein.

[[Page 58437]]

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

[[Page 58438]]

Atlantic Herring Survey.......... This operation collects fisheries- Pelagic Trawl....... 4-seam, 3-bridle net GOM and Northern GB Fall............... 34................. Y
independent herring spawning biomass bottom trawl,
data and also includes survey midwater rope
equipment calibration and performance trawl, acoustics.
tests.
Atlantic Salmon Trawl Survey..... This is a targeted research effort to Pelagic Trawl....... Modified mid-water Inshore and Spring............. 21................. Y
evaluate the marine ecology of trawl that fishes offshore GOM.
Atlantic salmon. at the surface via
pair trawling.
Deepwater Biodiversity........... This project collects fish, cephalopod Pelagic Trawl....... Deep-Sea acoustic/ Western North Summer or Fall..... 16................. Y
and crustacean specimens from 500 to optic/ocean Atlantic.
2,000 m for tissue samples, specimen ographic/eDNA
photos, and documentation of system, trawl
systematic characterization. camera system.
Penobscot Estuarine Fish The objective of this project is fish Pelagic Trawl....... Mamou shrimp trawl Penobscot Estuary Spring, Summer and 12................. Y
Community and Ecosystem Survey. and invertebrate sampling for modified to fish at and Bay, ME. Fall.
biometric and population analysis of surface.
estuarine and coastal species.
Northeast Integrated Pelagic The objective of this project is to Pelagic Trawl....... Mid-water trawls, Cape Hatteras to Summer and Fall.... 80................. Y
Survey. assess the pelagic components of the bong nets, CTD, Western Scotian
ecosystem including water currents, Acoustic Doppler Shelf.
water properties, phytoplankton, Profiler (ADCP),
micro-zooplankton, mesozooplankton, acoustics.
pelagic fish and invertebrates, sea
turtles, marine mammals, and sea
birds.
NEFOP Observer Mid-Water Trawl This program provides certification Pelagic Trawl....... Various commercial MAB and GB......... April-November as 5.................. Y
Training Trip. training for NEFOP Observers. nets. needed (day trips).
Apex Predators Pelagic Longline The objectives of this survey are to: Longline............ Yankee and current MD to Canada....... Spring............. 30................. Y
Shark Survey. (1) Monitor the species composition, commercial pelagic
distribution, and abundance of longline gear.
pelagic sharks in the U.S. Atlantic Configured
from Maryland to Canada; (2) tag according to NMFS
sharks for migration and age HMS Regulations.
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 survey are Longline............ Florida style bottom RI to FL within 40 Spring............. 47................. Y
Coastal Shark Survey. to: (1) Monitor the species longline. fathoms.
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 58439]]

Apex Predators Pelagic Nursery This project uses opportunistic Longline............ Standard commercial GB to Grand Banks Fall............... 21-55.............. Y
Grounds Study. sampling on board a commercial pelagic longline off Newfoundland,
swordfish longline vessel to: (1) gear. Configured Canada.
Monitor the species composition and according to NMFS
distribution of juvenile pelagic Highly Migratory
sharks on the Grand Banks; (2) tag Species (HMS)
sharks for migration and age Regulations.
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 Shark This project determines the location Longline and Gillnet Bottom Longline FL to RI........... Summer............. 25 or 40........... Y
Pupping and Nursery (COASTSPAN) of shark nurseries, species Gear, Anchored
Longline and Gillnet Surveys. composition, relative abundance, Sinking Gillnet.
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 project is to COOP Western-Central Longline............ Western GOM focused Spring and Fall.... 60 stations/year Y
Maine Longline Project. conduct commercial cooperative bottom Gulf of Maine hard on sea mounts. eastern Maine, 90
longline sets to characterize bottom longline stations/year
demersal species of the Western Gulf survey. western-central
of Maine traditionally difficult to GOM.
capture with traditional or research
trawl gear due to the bottom
topography.
NEFOP Observer Bottom Longline This program provides certification Longline............ Commercial bottom MAB and GB......... April-November as 5.................. Y
Training Trips. training for NEFOP observers. longline gear. needed (day trips).
Annual Assessments of Sea Scallop These Atlantic Sea Scallop Research Dredge.............. Scallop dredges, GPM, Georges Bank, Dredge surveys Apr- 50-100............. N
Abundance and Distribution. Set-Aside (RSA) rotational area drop cameras, Other Mid-Atlantic. Sept, Camera
surveys endeavor to monitor scallop Habitat Camera surveys June-Sept.
biomass and derive estimates of Total (HabCam) Versions.
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 certification Dredge.............. Turtle deflector MAB and GB......... April-November as 6.................. N
Training Trips. training for NEFOP observers. dredge. needed (day trips).

[[Page 58440]]

Annual Standardized Sea Scallop The objective of this project is to Dredge.............. New Bedford dredge, NC to GB........... Summer............. 36................. N
Survey. determine distribution and abundance HabCam V4.
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 project is to Dredge.............. Hydraulic-jet dredge Southern VA to GB.. Summer............. 15................. N
Survey. determine distribution and abundance
of Surfclam/ocean quahog and collect
related data.
Coastal Maine Telemetry Network.. The objective of this project is to Other............... Fixed position Penobscot River Year round in GOM 10................. Y
monitor tagged animals entering the acoustic telemetry estuary and bay, and Apr.-Nov. in
Penobscot Bay System and exiting the array receivers on GOM. nearshore areas.
system into the Gulf of Maine. moorings spaced 250-
400 m apart.
Deep-sea Coral Survey............ The objective of this program is to Other............... Remotely Operated Continental shelf Summer............. 16................. Y
determine the species diversity, Vehicles (ROVs), margin, slope, and
community composition, distribution CTD, towed cameras, submarine canyons
and extent of deep sea coral and ADCP, acoustics. and deep basins:
sponge habitats. GOM to Virginia.
Diving Operations................ The objective of this project is to Other............... Wire mesh cages, Long Island Sound.. Year round......... 20................. N
collect growth data on hard clams, lantern nets.
oysters and bay scallops.
Gulf of Maine Ocean Observing This project services oceanographic Other............... ADCP on vessel and GOM and Northern GB Summer............. 12................. N
System Mooring Cruise. moorings operated by the University moorings.
of Maine.
Hydroacoustics Surveys........... This project consists of mobile Acoustic only....... Split-beam and Penobscot Bay and Spring............. 25................. Y
transects conducted throughout the DIDSON. estuary.
estuary and bay to study fish biomass
and distribution.
Marine Estuaries Diadromous This project is a fish community Other............... 1 m and 2 m fyke Penobscot Bay and April-November..... 100................ N
Survey. survey at fixed locations. nets. estuary.
NEFOP Observer Gillnet Training This program provides certification Other............... gillnet gear........ MAB and GB......... April-November as 10................. N
Trips. training for NEFOP Observers. needed (day trips).
Nutrients and Frontal Boundaries. The objective of this project is to Other............... ADP, CTD, MAB................ Feb., May-June, 10................. N
characterize nutrient patterns Hydroacoustics. Aug, and Nov.
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 project is to Other............... CTD, YSI, Hudson River Spring............. 10................. N
develop baseline pH measurements in multinutrient Coastal waters.
the Hudson River water. analyzer, Kemmerer
bottle.
AUV Pilot Studies................ This program provides gear and Other............... AUV................. MA state waters, GB June............... 5.................. N
platform testing.
Rotary Screw Trap (RSTs) Survey.. This project is designed to collect Other............... RST................. Estuaries on April 15-June 15... 60................. N
abundance estimates of Migrating coastal Maine
Atlantic salmon smolts and other rivers.
anadromous species.
Trawling to Support Finfish The objective of this project is to Other............... Combination bottom Long Island Sound.. Summer............. 30................. Y
Aquaculture Research. collect broodstock for laboratory trawl, shrimp
spawning and rearing and experimental trawl, gillnet.
studies.
DelMarVa Habitat Characterization The objective of this project is to Other............... ADCP, CTD, YSI, Coastal waters off August............. 5.................. N
characterize and determine key hard Plankton net, video DE, MD and VA.
bottom habitats in coastal ocean off sled, Ponar grab,
the DelMarVa Peninsula as an adjunct Kemmerer bottle,
to the DelMarVa Reef Survey. sonar.

[[Page 58441]]

DelMarVa Reefs Survey............ The objective of this project is Other............... HABCAM, CTD......... Coastal waters off August............. 5.................. N
determination of extent and DE, MD and VA.
distribution of rock outcrops and
coral habitats and their use by black
sea bass and other reef Fishes.
Miscellaneous Fish Collections The James J. Howard Sandy Hook Marine Other............... Bottom trawl, New York Bight Spring and Fall.... not stated......... Y
and Experimental Survey Gear Laboratory occasionally supports lobster and fish estuary waters.
Trials. short-term research projects pots, beam trawl,
requiring small samples of fish for seine net, trammel
various purposes or to test nets.
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 of opportunistic Other............... Plankton net, Southeast LME Early Summer....... not stated......... N
Sampling. plankton and hydrographic sampling expendable depths <300 m.
during ship transit. bathythermograph.
Monkfish RSA..................... Monkfish Research Set-Aside (RSA) Other............... Commercial gillnets Mid-Atlantic and April-December (end 100-200 sets/year. Y
surveys endeavor to monitor Monkfish of various sizes, Georges Bank. of fishing year). Sets left for 2-3
biomass and derive estimates of Total short durations for days.
Allowable Catch (TAC) for annual sets.
Monkfish catch specifications.
Additionally, the surveys monitor
recruitment, growth, and other
biological parameters.
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Short-Term Cooperative Projects
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Survey Projects.................. Cooperative Industry based surveys to Trawl............... Bottom Trawl........ GOM, GB, SNE, MAB.. Summer and Fall.... 550 tows/year...... Y
enhance data for flatfish utilizing
cookie sweep gear on commercial
platforms.
Survey Projects.................. Cooperative Industry based Trawl............... Pelagic Trawl....... GOM, GB, SNE, MAB.. Summer and Fall 30 tows/year....... Y
catchability studies for Monkfish, Summer and Fall.
Longfin squid, other.
Trawl Comparison Research........ Twin trawl and paired vessel Twin Bottom Trawl... Trawl nets with two GB, SNE, MAB....... Summer and Fall.... 100 DAS............ Y
comparisons of Standardized Bigelow types of sweeps or
Trawl to test rockhopper and cookie doors.
sweeps and varying trawl doors
performance on commercial platforms.
Survey Projects.................. Pot and trap catchability studies for Pot survey.......... Pots and Traps...... SNE, Rhode Island Spring and fall for 2,650 pot sets/year Y
Scup and Black Sea bass. Bight, Nantucket black sea bass.
Sound, MAB waters Year round for
from shore to scup.
shelf edge.
Conservation Engineering Projects Gear and net conservation Cooperative Trawl............... Bottom Trawl........ GOM, GB, SNE, MAB.. Spring, Summer and ~500 tows per year Y
work. Fall. total for all
bottom trawl
conservation
projects.
Conservation Engineering Projects Varied gear and efficiency testing of Trawl............... Bottom Trawl........ GOM, GB, SNE, MAB.. Spring, Summer and ................... Y
fisheries applications. Fall.
Conservation Engineering Projects Cooperative Squid Trawls and studies Trawl............... Bottom Trawl & Beam GOM, GB, SNE, MAB.. Spring, Summer and ................... Y
for squid catchability and trawl. Fall.
selectivity.
Conservation Engineering Projects Commercial scallop dredge finfish and Dredge.............. Dredge.............. GB, SNE, MAB....... April-December (end >1,700 dredge tows/ N
turtle excluder research. Scallop of fishing year). year for all
dredge finfish and turtle excluder dredge
research. conservation
projects.

[[Page 58442]]

Conservation Engineering Projects Commercial hydrodynamic turtle Dredge.............. Hydrodynamic dredge. GB, SNE, MAB....... April-December (end ................... N
deflector dredge testing. of fishing year).
Tagging Projects................. Winter Flounder tagging projects. Trawl............... Bottom Trawl & Otter Coastal waters in Spring and Summer.. up to 650 trawls/ Y
Winter flounder migration patterns. trawl. GOM New Hampshire year.
to Stonington/Mt.
Desert Island, ME.
Tagging Projects................. Spiny dogfish tagging projects. Spiny Hook & Line; Gillnet Hook & Line and GOM and GB waters Spring, Summer and Long line: 5 sets/ Y
dogfish tagging north and south of Gillnet. adjacent to Cape Fall. trip, 15 total
Cape Cod, and Cusk & NE multi-species Cod, MA. Gillnet: 5 sets/
tagging. trip, 15 total.
Tagging Projects................. Monkfish tagging projects............. Gillnet............. Gillnet............. GOM, SNE, MAB...... September-December. 18-20 DAS, 10 short- Y
duration sets/day,
180-200 sets total.
Ropeless Lobster Trap Research... Research to develop ropeless gear/ Lobster Pots/Traps.. Acoustic/mechanical GOM, SNE, MAB Summer and Fall.... 50-100 DAS, 500 N
devices to mitigate/eliminate releases for (Inshore and sets, singles and
interactions with protected species ropeless lobster Offshore). up to 40 pots per
(whales and turtles) by utilizing gear and float set.
commercial lobster gear. lines.
Rod and Reel Tagging of Atlantic Use of rod and reel to capture, tag, Rod and Reel........ Acoustic tags....... ME, Greenland...... Summer and Fall.... 200-500 tags N
Salmon. release Atlantic salmon in applied total.
international and U.S. waters.
Continuous Plankton Recorder A towed continuous plankton recording Towed array......... CPR................. ME to Nova Scotia.. Summer and Fall.... 24 DAS............. N
(CPR) Transect Surveys: GOM. device is deployed from vessels of
opportunity in the Gulf of Maine,
monthly.
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Comments and Responses

We published a notice of proposed rulemaking in the Federal
Register on June 4, 2021 (86 FR 30080), and requested comments and
information from the public. During the 30-day comment period, we did
not receive any substantive public comments.

Changes From Proposed Rule to Final Rule

There were no substantive changes from proposed rule to final rule;
however, we have clarified reporting measures (to whom to report and
when) and carried over two measures that were contained in the preamble
of the proposed rule that were inadvertently omitted from the proposed
regulation section. Overall, the final rule is substantively similar to
the proposed rule.

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of NEFSC's LOA application summarize available
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 Environmental Assessment (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 2021 Final 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
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).

[[Page 58443]]

We provided a detailed description on each marine mammal species in
the notice of proposed rulemaking for this action (86 FR 30080, June 4,
2020). Since that time, no new information, other than an update to
North Atlantic right whale abundance (which is included in Table 2) is
available that impact our analysis and determinations; therefore, that
information is not repeated here.

Table 2--Marine Mammal Present Within the Northeast U.S. Continental Shelf Large Marine Ecosystem
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA
status; Stock abundance (CV, Total annual
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR \3\ M/SI \3\
\1\ abundance survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
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) 0.8 \4\ 18.6
\11\.
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................ 170 \6\ \7\ 10.6
acutorostrata (0.31, 17,002, 2016)..
acutorostrata.
Sei whale....................... B. borealis borealis.. Nova Scotia........... E/D; Y 6,292 (1.02, 3,098, 6.2 \8\ 1.2
2016).
Fin whale....................... B. physalus physalus.. Western North Atlantic E/D; Y 6,802 (0.24, 5,573, 11 \9\ 2.35
2016).
Humpback whale.................. Megaptera novaeangliae Gulf of Maine......... E/D; Y 1,393 (0.15, 1,375, 22 \10\ 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) \11\.
Sowerby's beaked whale.......... M. bidens............. Western North Atlantic -; N 10,107 (0.27, 8,085, 81 0
2016) \11\.
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 \7\ 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).
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 \12\ 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 \7\ 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 \7\ 4,729
grypus. 2016).
Harbor seal..................... Phoca vitulina Western North Atlantic -; N 75,834 (0.15, 66,884, 2,006 \7\ 350
vitulina. 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).

[[Page 58444]]

\4\ 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.
\5\ 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).
\6\ 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).
\7\ The NEFSC has historically taken this species in NEFSC research surveys (2004-2015) (see Tables 6-8).
\8\ 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).
\9\ 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).
\10\ 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.
\11\ Pace et al., 2021. 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).
\12\ 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.

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

Detailed descriptions of the potential effects of the various
elements of the NEFSC's specified activity on marine mammals and their
habitat were provided in the proposed rule (86 FR 30080, June 4, 2021)
as well as the 2016 Programmatic EA. Additionally, detailed
descriptions of the potential effects of similar specified activities
have also been provided in other Federal Register notices (e.g., 81 FR
38516, June 13, 2016; 83 FR 37638; August 1, 2018; 84 FR 6576, February
27, 2019), and section 7 of NEFSC's application provides a discussion
of the potential effects of their specified activity, which we have
reviewed for accuracy and completeness. No significant new information
is available, and these discussions provide the necessary, adequate and
relevant information regarding the potential effects of NEFSC's
specified activity on marine mammals and their habitat. Therefore, we
refer the reader to these documents rather than repeating the
information here. The referenced information includes a summary and
discussion of the ways that components of the specified activity (e.g.,
gear deployment, use of active acoustic sources, visual disturbance)
may impact marine mammals and their habitat.
As stated previously, the use of certain research gears, including
trawl nets, gillnets, longline gear, and fyke nets, has the potential
to result in interaction with marine mammals. In the event of a marine
mammal interaction with research gear, injury, serious injury, or
mortality may result from entanglement or hooking. Exposure to sound
through the use of active acoustic systems for research purposes may
result in Level B harassment. However, as detailed in the previously
referenced discussions, Level A harassment in the form of permanent
threshold shift (PTS) is extremely unlikely to occur, and we consider
such effects discountable. Finally, it is expected that hauled
pinnipeds may be disturbed by approaching researchers such that Level B
harassment could occur. Ship strike is not a reasonably anticipated
outcome of NEFSC research activities, given the small amount of
distance covered by research vessels, use of observers, and their
relatively slow speed in comparison to commercial shipping traffic
(i.e., the primary cause of marine mammal vessel strikes).
With specific reference to Level B harassment that may occur as a
result of acoustic exposure, we note that the analytical methods from
the original 2016 analysis 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
the preceding 5 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 2016 analytical approach 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. In summary, while we authorize the amount of take
by Level B harassment indicated in the Estimated Take section, and
consider these potential takings at face value in our negligible impact
analysis, it is uncertain whether use of these acoustic systems are
likely to cause take at all, much less at the estimated levels.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Negligible Impact Analysis and
Determinations section considers the potential effects of the specified
activity, the Estimated Take section, and the 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.

Estimated Take

This section provides an estimate of the number of incidental takes
to be authorized through a LOA, 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

[[Page 58445]]

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). 0 1 1
Minke whale (1) 1 0 1
Gray seal (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 5 minutes. While on deck, it was vocalizing and moving
its tail up and down. The whale swam away upon release and appeared to be fine. Estimated length was 19
feet.'' The NEFSC later classified this incidental take as a serious injury using NMFS criteria for such
determinations published in January 2012 (Cole and Henry, 2013).
\2\ The NEFSC filed an incident report for this incidental take on April 4, 2015.

Table 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). 1 0 1
Gray seal (1).. 1 0 1
Harbor porpoise
(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).

[[Page 58446]]

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 5-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 5-year totals for this 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. 0.06
Minke whale............ 0.06
Gray seal..............
Gillnet........................ Common bottlenose 0.06
dolphin. 0.06
Harbor porpoise........ 0.06
Gray seal..............
Fyke net....................... Harbor seal............ 0.06
------------------------------------------------------------------------

The NEFSC 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 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 5-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., 5 total). On the basis of similar vulnerability of
other dolphin species, the NEFSC estimates two potential takes over the
5-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 5-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

[[Page 58447]]

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 5-year
authorization period. Thus, for harbor and gray seals, we propose to
authorize a total taking by M/SI of 5 individuals over the 5-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 5 takes of harbor seals in
gillnets over the 5-year authorization period. For this species, we
propose to authorize a total taking by M/SI of 5 individuals over the
5-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 5-year
authorization period. For these species, we propose to authorize a
total taking by M/SI of one individual (per species) over the 5-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 Mitigation
and 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 5-
year authorization period. Thus, for harbor and gray seals, we propose
to authorize a total taking by M/SI of 5 individual over the 5-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 5-year authorization period. Thus, for gray seals, we propose to
authorize a total taking by M/SI of 5 individual over the 5-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,
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 issuance of this amount of take, by species, is reasonably
conservative.
The amount of take authorized, by M/SI, is identical to that
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

[[Page 58448]]

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

Acoustic Thresholds

NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment). As described in detail for 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 decibels (dB) re 1 microPascal ([mu]Pa) root
mean square (rms) for continuous (e.g., vibratory pile-driving,
drilling) and above 160 dB re 1 [mu]Pa (rms) for intermittent (e.g.,
scientific sonar) 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 kilohertz (kHz) (see Table 2). Examination of
these sources considers operational patterns of use

[[Page 58449]]

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 (18 kHz).
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 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, July 9, 2015).
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

[[Page 58450]]

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, July 9, 2015),
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, August 11,
2016). 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 km\2\) \1\ \2\ km\3\) \3\ km\2\) \2\ \4\ km\3\) \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
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

[[Page 58451]]

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.
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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 April-November; and rotary
screw trap surveys from April-June.

[[Page 58454]]

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, August 11, 2016) 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 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 Survey
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
out 1 disturbed per DAS Trawl 12 DAS Total gears
day 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 incidental take
authorized on an annual basis for the NEFSC in the Atlantic coast
region, as well as other information relevant to the negligible impact
analyses.

[[Page 58455]]

Table 18--Total Take Authorized, by M/SI and Level B Harassment, Over 5 Years
[2021-2026]
----------------------------------------------------------------------------------------------------------------
Annual level B take
5-Year total M/------------------------------------------------ Total 5-yr
Common name SI take Total (percent level B take
authorization LME Offshore of 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.

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 58456]]

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 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 Monitoring and Reporting).

Vessel Speed Limits and Course Alteration

When NEFSC research vessels are actively sampling, cruise speeds
are less than 5 knots (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 October 10, 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 (19.8 m)

[[Page 58457]]

will abide 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 CS.
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

[[Page 58458]]

mammals or other protected species 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 close to the deck/sorting
area and 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. NEFSC must
ensure that surveys deploy acoustic deterrent devices on gillnets in
areas where required for commercial fisheries. NEFSC must ensure that
the devices are operating properly before deploying the net.

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. 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 nm 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 these measures, NMFS has determined that
the 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.

[[Page 58459]]

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
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
specified geographic region. 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 the
Mitigation section. Dedicated marine mammal visual monitoring occurs as
described (1) for some period prior to deployment of most research
gear; (2) throughout deployment and active fishing of all research
gears; (3) for some period prior to retrieval of longline gear; and (4)
throughout retrieval of all research gear. This visual monitoring is
performed by trained 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 suite of monitoring and operational procedures
required through this rulemaking 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

[[Page 58460]]

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 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 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

[[Page 58461]]

mammals that are released alive. NEFSC will require that the CS
complete data forms and address supplemental questions, both of which
have been developed to aid in SI determinations. NEFSC understands the
critical need to provide as much relevant information as possible about
marine mammal interactions to inform decisions regarding SI
determinations. In addition, the NEFSC will perform all necessary
reporting to ensure that any incidental M/SI is incorporated as
appropriate into relevant SARs.

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

[[Page 58462]]

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 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.

[[Page 58463]]

Where the anticipated M/SI is near, at, or above residual PBR,
consideration of other factors (positive or negative), including those
outlined above, as well as mitigation is especially important to
assessing whether the M/SI will have a negligible impact on the species
or stock. PBR is a conservative metric and not sufficiently precise to
serve as an absolute predictor of population effects upon which
mortality caps would appropriately be based. For example, in some cases
stock abundance (which is one of three key inputs into the PBR
calculation) is underestimated because marine mammal survey data within
the U.S. Exclusive Economic Zone (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 authorized
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

[[Page 58464]]

maximum annual M/SI take level (including take of unidentified marine
mammals that could accrue to any relevant stock) and compare that value
to the stock's PBR value, considering ongoing sources of anthropogenic
mortality. 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 Annual Take by Mortality or Serious Injury Authorization, 2021-2026.
--------------------------------------------------------------------------------------------------------------------------------------------------------
NEFSC M/SI Navy AFTT Total M/SI
Species Stock Stock take PBR Annual M/ SEFSC take take by M/ r-PBR take r-PBR
abundance (annual) SI by M/SI SI (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 4153 0.01
Short-beaked common dolphin....... 172,974 1.4 1,452 399 0.8 0 1052.2 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 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 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 determined the 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 take authorized 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 percent CI: -2.3-1.9) to 26.3 percent (95 percent 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 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

[[Page 58465]]

short-term, minor behavioral reactions to exposure such as moving away
from the source. Some marine mammals (e.g., 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
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 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 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 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 monitoring and mitigation
measures, NMFS 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 58466]]

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 take authorized 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 mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS 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).
GARFO issued a biological opinion to the NEFSC (concerning the
conduct of the specified activities) and OPR (concerning issuance of
the LOA) on October 8, 2021, which concluded that the proposed actions
are not likely to adversely affect any listed marine mammal species or
adversely modify critical habitat.

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.
NMFS evaluated information in the PEA, SPEA, and NEFSC's
application, as well as the 2016 FONSI, and determined that the initial
FONSI is sufficient to support issuance of these regulations and
subsequent 5-year Letter of Authorization. NMFS has documented this
determination in a memorandum for the record.

National Marine Sanctuaries Act (NMSA)

On September 16, 2015, NMFS OPR Permits and Conservation Division,
requested consultation under Section 304(d) of the NMSA on the issuance
of regulations and a Letter of Authorization to the NEFSC from 2016-
2021. Similarly, the NEFSC initiated consultation pursuant to section
304(d) of the NMSA on August 4, 2015, to conduct fisheries research
activities within Stellwagen Bank National Marine Sanctuary (NMS). On
September 23, 2015, the Office of National Marine Sanctuaries (ONMS)
responded with comments and recommendations which were incorporated
into the NEFSC's PEA and NMFS final rule. The survey activities being
considered under this final rule or their potential impacts on marine
mammals are not significantly different from the activities considered
in the 2015 consultation. Therefore, PR1 has determined that re-
initiation of NMSA 304(d) consultation is not required for the issuance
of the 2021-2026 LOA because the changes in the action and potential
impacts do not meet the triggers for re-initiation of consultation.

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 5-year
regulations for activities that have been associated with marine mammal
mortality.
The reporting requirements associated with this rule are designed
to provide OPR with monitoring data from the previous year to allow
consideration of whether any changes are appropriate. OPR and the 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

[[Page 58467]]

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.

Classification

The Office of Management and Budget has determined that this rule
is not significant for purposes of Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this 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 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 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.

Waiver of Delay in Effective Date

NMFS has determined that there is good cause under the
Administrative Procedure Act (5 U.S.C 553(d)(3)) to waive the 30-day
delay in the effective date of this final rule. No individual or entity
other than the NEFSC is affected by the provisions of these
regulations. The NEFSC requested that this final rule take effect on
September 10, 2021, to accommodate the NEFSC's LOA expiring on
September 9, 2021, so as to not cause a disruption in research
activities. The waiver of the 30-day delay of the effective date of the
final rule will ensure that the MMPA final rule and LOA are in place as
soon as possible to minimize the lapse in MMPA take coverage. Any delay
in finalizing the rule would result in either: (1) A suspension of
planned research, which would disrupt the provision of vital data
necessary for effective management of fisheries; or (2) the NEFSC's
procedural non-compliance with the MMPA (should the NEFSC conduct
research without an LOA), thereby resulting in the potential for
unauthorized takes of marine mammals. Moreover, the NEFSC is ready to
implement the regulations immediately and requested the waiver. For
these reasons, NMFS finds good cause to waive the 30-day delay in the
effective date. In addition, the rule authorizes incidental take of
marine mammals that would otherwise be prohibited under the statute.
Therefore, by granting an exception to the NEFSC, the rule will relieve
restrictions under the MMPA, which provides a separate basis for
waiving the 30-day effective date for the rule.

List of Subjects in 50 CFR Part 219

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

Dated: October 15, 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 amended
as follows:

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

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

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

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

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) This subpart applies 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 October 21, 2021,
through October 21, 2026.

Sec. 219.33 >Permissible methods of taking.

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) 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;

[[Page 58468]]

(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 (19.8 m) 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 or acoustically-triggered
Slow Zone should 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) NEFSC must implement handling and/or disentanglement protocols
as specified in the guidance provided to NEFSC survey personnel; and
(9) 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 nm 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, NEFSC may 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. NMFS may use best professional
judgement in making this decision;
(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. NEFSC may
use best professional judgment in making this decision;
(5) If trawling operations have been suspended because of the
presence of marine mammals, NEFSC may resume only after there are no
sightings for 15 minutes within 1nm of sampling location;
(6) 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;
(7) NEFSC must implement standard survey protocols to minimize
potential for marine mammal interactions. These protocols include, but
are not limited to:
(i) 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;
(ii) Trawl tow distances of no more than 3 nm;
(iii) 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;
(iv) Sharp course changes will be avoided in all surveys;
(v) Open the codend of the net close to the deck/sorting area to
avoid damage to animals that may be caught in gear; and
(vi) Gear will be emptied as close to the deck/sorting area and as
quickly as possible after retrieval; and
(vii) 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

[[Page 58469]]

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 close to the
deck/sorting area and 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 1nm area of sampling location. In no case will
longlines be deployed if animals are considered at-risk of interaction;
and
(7) NEFSC must implement standard survey protocols, including
maximum soak durations and a prohibition on chumming.
(e) Gillnet survey protocols. (1) The NEFSC must deploy gillnet
gear as soon as is practicable upon arrival at the sampling station;
(2) The NEFSC 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 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 must carefully retrieve the gear as quickly as possible. The
NEFSC may use best professional judgment in making this decision;
(5) The NEFSC 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 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 maintain visual monitoring effort during the entire
period of gear deployment or retrieval. If marine mammals are sighted
during the soak and are deemed at risk of interaction, the gillnet must
be pulled. 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;
(8) 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;
(9) For the COASTSPAN gillnet surveys, the NEFSC will actively
monitor for potential bottlenose dolphin entanglements by hand-checking
the gillnet every 30 minutes or if a disturbance in the net is
observed. In the unexpected case of a bottlenose dolphin entanglement
resulting in mortality, NEFSC must request and arrange for expedited
genetic sampling for stock determination. NEFSC must also photograph
the dorsal fin and submit the image to the NMFS Southeast Stranding
Coordinator for identification/matching to bottlenose dolphins in the
Mid-Atlantic Bottlenose Dolphin Photo-Identification Catalog;
(10) NEFSC must pull gear immediately if disturbance in the nets is
observed.
(11) All gillnets will be designed with minimal net slack and
excess floating and trailing lines will be removed.
(12) 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,
(13) On Observer Training cruises, acoustic pingers and weak links
may be used on all gillnets consistent with the regulations and TRPs
for commercial fisheries. NEFSC must ensure that surveys deploy
acoustic deterrent devices on gillnets in areas where required for
commercial fisheries. NEFSC must ensure that the devices are

[[Page 58470]]

operating properly before deploying the net.
(f) Pot and trap survey protocols. (1) The NEFSC must deploy pot
gear as soon as is practicable upon arrival at the sampling station;
(2) The NEFSC must initiate marine mammal watches (visual
observation) no less than 15 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 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 may use best professional judgment in making
this decision; and
(5) The NEFSC 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.
(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 using fyke nets equal or greater to 2 m.
(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 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, 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. (i) NEFSC must report all incidents of marine mammal
interaction to NMFS' Protected Species

[[Page 58471]]

Incidental Take database within 48 hours of occurrence. Information
related to marine mammal interaction (animal captured or entangled in
research gear) must include details of survey effort, full descriptions
of any observations of the animals, the context (vessel and
conditions), decisions made and rationale for decisions made in vessel
and gear handling.
(ii) The NEFSC must submit annual reports. 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. 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.
(iii) Reporting of North Atlantic right whales and injured or dead
marine mammals:
(A) In the event that the NEFSC observes a North Atlantic right
whale during a survey, they must report the sighting as soon as
possible to 866-755-6622 if the sighting occurs in the Northeast region
(VA to ME) or to 877-WHALE-HELP if the sighting occurs in the Southeast
region (FL to NC). The NEFSC must also report the sighting to the U.S.
Coast Guard via Channel 16.
(B) In the event that the NEFSC discovers an injured or dead marine
mammal, NEFSC must report the incident to OPR
([email protected]), 866-755-6622 in the Northeast
region (VA to ME) and 877-WHALE-HELP in the Southeast region (FL to
NC).
(C) In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a prohibited manner, NEFSC 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 immediately reported to
the contacts in 6(c)(ii). OPR will review the circumstances of the
prohibited take and work with NEFSC to determine what measures are
necessary to minimize the likelihood of further prohibited take and
ensure MMPA compliance. The report must include the following
information:
(i) Time, date, and location (latitude/longitude) of the 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.
(3) In the event of a ship strike of a marine mammal by any vessel
involved in the activities covered by the authorization, NEFSC must
report the incident to OPR and to the appropriate Regional Stranding
Network 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.
(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 30 days of a determination.

Sec. 219.38 >Renewals and modifications of Letters of Authorization.

(a) A LOA issued under Sec. Sec. 216.106 of this chapter and
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

[[Page 58472]]

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), a LOA may be modified without
prior notice or opportunity for public comment. Notification would be
published in the Federal Register within 30 days of the action.

Sec. Sec. 219.39-219.40 [Reserved]

[FR Doc. 2021-22858 Filed 10-20-21; 8:45 am]
BILLING CODE 3510-22-P

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