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190–199) in the form of periodically DEPARTMENT OF COMMERCE Antarctic Marine Living Resources updated FAQs and other guidance Ecosystem research areas. materials. On October 1, 2019, PHMSA National Oceanic and Atmospheric We received an application from the published amendments to 49 CFR parts Administration SWFSC requesting five-year regulations 191 and 192 in the Gas Transmission and authorization to take multiple final rule (84 FR 52180), which 50 CFR Part 219 species of marine mammals. Take would occur by Level B harassment addressed several statutory mandates [Docket No. 201020–0275] from the Pipeline Safety, Regulatory incidental to the use of active acoustic Certainty, and Job Creation Act of 2011 RIN 0648–BJ71 devices, as well as by visual disturbance (Pub. L. 112–90). PHMSA finalized the of pinnipeds in the Antarctic, and by Taking and Importing Marine Level A harassment, serious injury, or first set of FAQs (Batch-1 FAQs) to help Mammals; Taking Marine Mammals mortality incidental to the use of clarify, explain, and promote better Incidental to Southwest Fisheries fisheries research gear. Please see understanding of the Gas Transmission Science Center Fisheries Research ‘‘Background’’ below for definitions of final rule. The Batch-1 FAQs were harassment. posted to the docket on September 16, AGENCY: National Marine Fisheries 2020. Service (NMFS), National Oceanic and Legal Authority for the Action PHMSA is requesting public comment Atmospheric Administration (NOAA), Section 101(a)(5)(A) of the MMPA (16 on a second set of draft FAQs (Batch-2 Commerce. U.S.C. 1371(a)(5)(A)) directs the FAQs) pertaining to the Gas ACTION: Final rule; notification of Secretary of Commerce to allow, upon Transmission final rule. The Batch-2– issuance of Letters of Authorization. request, the incidental, but not FAQs are intended to help the public intentional taking of small numbers of SUMMARY: NMFS’ Office of Protected marine mammals by U.S. citizens who understand and implement necessary Resources (OPR), upon request from changes in response to PHMSA’s new engage in a specified activity (other than NMFS’ Southwest Fisheries Science commercial fishing) within a specified regulations. They are in response to Center (SWFSC), hereby issues geographical region for up to five years specific questions received from the regulations to govern the unintentional if, after notice and public comment, the regulated community, pipeline safety taking of marine mammals incidental to agency makes certain findings and regulators, and the public. Operators fisheries research conducted in multiple issues regulations that set forth and state regulators may also request specified geographical regions over the permissible methods of taking pursuant written regulatory interpretations from course of five years. These regulations, to that activity and other means of PHMSA regarding specific situations in which allow for the issuance of Letters effecting the ‘‘least practicable adverse accordance with 49 CFR 190.11. of Authorization (LOA) for the impact’’ on the affected species or While FAQs are provided to help the incidental take of marine mammals stocks and their habitat (see the public understand how to comply with during the described activities and discussion below in the Mitigation the regulations, they are not substantive specified timeframes, prescribe the section), as well as monitoring and rules themselves and do not create permissible methods of taking and other reporting requirements. Section means of effecting the least practicable legally enforceable rights, assign duties, 101(a)(5)(A) of the MMPA and the adverse impact on marine mammal or impose new obligations not otherwise implementing regulations at 50 CFR part species or stocks and their habitat, as contained in the existing regulations 216, subpart I provide the legal basis for well as requirements pertaining to the issuing this rule containing five-year and standards. However, an operator monitoring and reporting of such taking. who is able to demonstrate compliance regulations, and for any subsequent DATES: Effective from January 15, 2021 with the FAQs is likely to be able to LOAs. As directed by this legal through January 15, 2026. authority, this rule contains mitigation, demonstrate compliance with the monitoring, and reporting requirements. relevant regulations. ADDRESSES: A copy of SWFSC’s application and supporting documents, The draft FAQs and other supporting Summary of Major Provisions Within as well as a list of the references cited the Regulations documents are available online on the in this document, may be obtained Federal eRulemaking Portal, https:// online at: www.fisheries.noaa.gov/ Following is a summary of the major www.regulations.gov; search for Docket action/incidental-take-authorization- provisions of these regulations regarding No. PHMSA–2019–0225. Before noaa-southwest-fisheries-science-center- SWFSC fisheries research activities. finalizing the draft FAQs, PHMSA will These measures include: fisheries-and. In case of problems • evaluate all comments received on or accessing these documents, please call Required monitoring of the before the comment closing date. the contact listed below. sampling areas to detect the presence of marine mammals before deployment of Comments received after the closing FOR FURTHER INFORMATION CONTACT: Ben date will be evaluated to the extent certain research gear; and Laws, Office of Protected Resources, • Required implementation of the practicable. Once finalized, the FAQs NMFS, (301) 427–8401. mitigation strategy known as the ‘‘move- will be posted in the docket and on SUPPLEMENTARY INFORMATION: on rule mitigation protocol’’ which PHMSA’s public website at https:// incorporates best professional judgment, www.phmsa.dot.gov. Purpose and Need for Regulatory Action when necessary during certain research Issued in Washington, DC on December 22, fishing operations. These regulations establish a 2020, under authority delegated in 49 CFR Background 1.97. framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to allow The MMPA prohibits the ‘‘take’’ of Alan K. Mayberry, for the authorization of take of marine marine mammals, with certain Associate Administrator for Pipeline Safety. mammals incidental to the SWFSC’s exceptions. Sections 101(a)(5)(A) and [FR Doc. 2020–28777 Filed 1–14–21; 8:45 am] fisheries research activities in the (D) of the MMPA (16 U.S.C. 1361 et BILLING CODE 4910–60–P California Current Ecosystem and the seq.) direct the Secretary of Commerce

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(as delegated to NMFS) to allow, upon (AMLR). Information related to this onboard commercial fishing vessels or request, the incidental, but not previous rulemaking and required by cooperating scientists on non-NOAA intentional, taking of small numbers of reporting submitted by SWFSC vessels, but the SWFSC designs and marine mammals by U.S. citizens who according to the terms of the LOAs may executes the studies and funds vessel engage in a specified activity (other than be found online at: time. The SWFSC plans to administer commercial fishing) within a specified www.fisheries.noaa.gov/action/ and conduct approximately 18 survey geographical region if certain findings incidental-take-authorization-noaa- programs over the five-year period, are made and either regulations are fisheries-swfsc-fisheries-and-ecosystem- within two separate research areas. issued or, if the taking is limited to research. SWFSC adhered to all Please see Table 1–2 in SWFSC’s harassment, a notice of a proposed mitigation, monitoring, and reporting application for details relating to the incidental take authorization may be requirements and did not exceed planned survey programs. The gear provided to the public for review. authorized numbers of take. types used fall into several categories: Authorization for incidental takings SWFSC conducts fisheries research Towed nets fished at various levels in shall be granted if NMFS finds that the using pelagic trawl gear used at various the water column, longline and other taking will have a negligible impact on levels in the water column, pelagic hook and line gear, purse seine nets, the species or stock(s) and will not have longlines with multiple hooks, purse and other gear. Only use of trawl nets, an unmitigable adverse impact on the seine gear, and other gear. If a marine hook and line gear, and purse seine nets availability of the species or stock(s) for mammal interacts with gear deployed are likely to result in interaction with taking for subsistence uses (where by SWFSC, the outcome could marine mammals. Many of these relevant). Further, NMFS must prescribe potentially be Level A harassment, surveys also use active acoustic devices. the permissible methods of taking and serious injury (i.e., any injury that will The Federal government has a other ‘‘means of effecting the least likely result in mortality), or mortality. responsibility to conserve and protect practicable adverse impact’’ on the However, there is not sufficient living marine resources in U.S. waters affected species or stocks and their information upon which to base a and has also entered into a number of habitat, paying particular attention to prediction of what the outcome may be international agreements and treaties rookeries, mating grounds, and areas of for any particular interaction. Therefore, related to the management of living similar significance, and on the SWFSC has pooled the estimated marine resources in international waters availability of the species or stocks for number of incidents of take resulting outside the United States. NOAA has taking for certain subsistence uses from gear interactions, and we have the primary responsibility for managing (referred to in shorthand as assessed the potential impacts marine finfish and shellfish species and ‘‘mitigation’’); and requirements accordingly. SWFSC also uses various their habitats, with that responsibility pertaining to the mitigation, monitoring active acoustic devices in the conduct of delegated within NOAA to NMFS. and reporting of the takings are set forth. fisheries research, and use of these In order to direct and coordinate the The definitions of all applicable MMPA devices has the potential to result in collection of scientific information statutory terms cited above are included Level B harassment of marine mammals. needed to make informed fishery in the relevant sections below. Level B harassment of pinnipeds hauled management decisions, Congress created six regional fisheries science Summary of Request out on ice may also occur, in the Antarctic only, as a result of visual centers, each a distinct organizational On April 30, 2020, we received an entity and the scientific focal point disturbance from vessels conducting adequate and complete request from within NMFS for region-based Federal SWFSC for authorization to take marine SWFSC research. The SWFSC conducts fisheries fisheries-related research. This research mammals incidental to fisheries research surveys in the CCE, ETP, and is aimed at monitoring fish stock research activities. On May 8, 2020 (85 the AMLR. However, SWFSC does not recruitment, abundance, survival and FR 27388), we published a notice of plan to conduct research over the five- biological rates, geographic distribution receipt of SWFSC’s application in the year period in the ETP. Therefore, these of species and stocks, ecosystem process Federal Register, requesting comments changes, and marine ecological regulations address only the CCE and and information related to the SWFSC research. The SWFSC is the research AMLR. In the CCE, SWFSC requested request for thirty days. We did not arm of NMFS in the southwest region of authorization to take individuals of 24 receive any comments in response. We the United States. The SWFSC conducts stocks by Level A harassment, serious published a notice of proposed research and provides scientific advice injury, or mortality (hereafter referred to rulemaking in the Federal Register on to manage fisheries and conserve as M/SI) and of 38 stocks by Level B August 28, 2020 (85 FR 53606) and protected species in the geographic harassment. In the AMLR, SWFSC requested comments and information research areas listed above and provides requested authorization to take from the public. Please see Comments scientific information to support the individuals of fifteen species by Level B and Responses, below. Pacific Fishery Management Council harassment. No takes by M/SI are These regulations are the second and numerous other domestic and anticipated in the AMLR. These consecutive five-year incidental take international fisheries management regulations are effective for five years. regulations issued in response to a organizations. petition from SWFSC. The initial Description of the Specified Activity regulations were finalized in 2015 and Dates and Duration are effective through October 30, 2020 Overview The specified activity may occur at (80 FR 58982; September 30, 2015). The SWFSC collects a wide array of any time during the five-year period of Three Letters of Authorization (LOA) information necessary to evaluate the validity of the regulations. Dates and were issued to SWFSC pursuant to the status of exploited fishery resources and duration of individual surveys are regulations, related to SWFSC research the marine environment. SWFSC inherently uncertain, based on survey activities in the California scientists conduct fishery-independent congressional funding levels for the Current Ecosystem (CCE), the Eastern research onboard NOAA-owned and SWFSC, weather conditions, or ship Tropical Pacific (ETP), and the Antarctic operated vessels or on chartered vessels. contingencies. In addition, cooperative Marine Living Resources Ecosystem Some surveys may be conducted research is designed to provide

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flexibility on a yearly basis in order to online at: www.fisheries.noaa.gov/ Comment—The Commission address issues as they arise. Some action/incidental-take-authorization- recommends that NMFS prioritize cooperative research projects last noaa-southwest-fisheries-science-center- updating its generic Level B harassment multiple years or may continue with fisheries-and. Please see the thresholds and formulate a strategy for modifications. Other projects only last Commission’s comment letter for full developing thresholds for all types of one year and are not continued. Most rationale behind the Commission’s sound sources and for incorporating cooperative research projects go through recommendations, to which we respond new data regarding these thresholds as an annual competitive selection process below. In response to the comments, soon as possible. to determine which projects should be minor changes were made to the take Response—NMFS concurs with the funded based on proposals developed number for southern elephant seals and Commission’s recommendation and by many independent researchers and to certain reporting requirements, as agrees that this issue is a priority. fishing industry participants. SWFSC detailed below. Comment—The Commission survey activity does occur during most The Commission noted that a 2015 recommends that NMFS increase the months of the year; however, trawl requirement for SWFSC to report annual take by Level B harassment of surveys typically occur during May whether the move-on rule was waived southern elephant seals due to on-ice through June and September and for California sea lions was not included disturbance from one per year to five longline surveys are typically completed in the proposed rule. The Commission per year in the final rule, in order to during June–July and September. asserted that this information remains account for the potential that smaller Specified Geographical Region relevant (and would apply to purse groups could be present. seines in addition to longlines), and that Response—NMFS concurs with the The SWFSC conducts research within it should be included as a requirement recommendation and has increased the two research areas considered to be in the final rule. (See footnote 2 of the annual take number as suggested. See distinct specified geographical regions: Commission’s public comment letter.) Table 9. The CCE and AMLR. No research NMFS concurs with this suggestion and activity is planned within the ETP over Comment—The Commission has included these reporting recommends that NMFS include in all the next five years. Please see Figures 1– requirements in the final rule. 1, 2–1, and 2–2 in the SWFSC proposed and final incidental Comment—The Commission application for maps of the research harassment authorizations and rules, recommends that NMFS ensure that any areas. We note here that, while the including the SWFSC’s final rule, the criteria and guidance developed specified geographical regions within explicit requirement to cease activities if regarding de minimis acoustic sources which the SWFSC operates may extend a marine mammal is injured or killed by consider the overall level of impacts and outside of the U.S. Exclusive Economic vessel strike, until NMFS reviews the are used consistently across all action Zone (EEZ), the MMPA’s authority does circumstances involving any injury or proponents and applications. not extend into foreign territorial death that is likely attributable to the Response—NMFS concurs with the waters. Detailed descriptions of the activities and determines what Commission’s recommendation and SWFSC’s research areas were provided additional measures are necessary to intends to use any such criteria and/or in the notice of proposed rulemaking for minimize additional injuries or deaths. guidance consistently. SWFSC’s previous incidental take Response—NMFS does not anticipate, regulations (80 FR 8166; February 13, Comment—The Commission and has not authorized, any takes 2015). Those descriptions remain recommends that NMFS require SWFSC associated with vessel strikes. Further, accurate and sufficient, and we refer the to estimate the numbers of marine in the event of a vessel strike, SWFSC reader to that notice rather than mammals that may be taken by Level B is required both to collect and report an reprinting the information here. harassment due to sound exposure extensive suite of information that resulting from use of active acoustic NMFS has identified in order to Detailed Description of Activities sources based on the 120- rather than evaluate the event, and to notify OPR A detailed description of SWFSC’s the 160-dB re 1 mPa threshold for non- and the West Coast Regional Stranding planned activities was provided in the impulsive, intermittent sources, Coordinator as soon as feasible. At that notice of proposed rulemaking (85 FR including those sources whose primary point, as the Commission suggests, 53606; August 28, 2020) and is not operating frequency is above 180 kHz NMFS would work with SWFSC to repeated here. No changes have been that have been shown to elicit determine whether there are additional made to the specified activities behavioral responses above the 120-dB mitigation measures or modifications described therein. re 1 mPa threshold. that could further reduce the likelihood Response—NMFS does not concur of vessel strike for the activities. Comments and Responses with the Commission’s recommendation However, given the very low likelihood We published a notice of proposed and does not adopt it. NMFS has of a vessel strike occurring, the rulemaking in the Federal Register on addressed the Commission’s protective value of ceasing operations August 28, 2020 (85 FR 53606) and recommendation on numerous while NMFS and SWFSC discuss requested comments and information occasions, and the Commission does not potential additional mitigations in order from the public. During the 30-day offer any substantive new points in to avoid a second highly unlikely event comment period, we received comments support of its position. NMFS provided is unclear, while a requirement for from the Marine Mammal Commission a detailed explanation of the reasons project activities to cease would not be (Commission) and from 6 private why the recommendation was not practicable for a vessel that is operating citizens. Of the latter, two comments followed in response to the on the open water. Therefore, NMFS expressed general opposition, two Commission’s letter pertaining to does not concur that the measure is expressed general support, and two proposed incidental take regulations for warranted, and we have not included were not relevant to the proposed NMFS’ Alaska Fisheries Science Center this requirement in the authorization. rulemaking. The remaining comments (84 FR 46788; September 5, 2019). We NMFS retains authority to modify the and our responses are provided here, refer the Commission and the public to LOA and cease all activities and the comments have been posted that explanation. immediately based on a vessel strike

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and will exercise that authority if final rule. See § 219.6(e)(2)(ii)(D) of the use of PBR generally for section warranted. final regulations. 101(a)(5)(A) authorizations below in the With respect to the Commission’s Comment—Regarding the negligible Negligible Impact Analysis and recommendation that NMFS include impact analysis provided for the Determinations section. these requirements in all proposed and California coastal stock of bottlenose With regard to the Commission’s final incidental take authorizations, dolphin, the Commission states that recommendation to apply the NMFS determines the requirements for NMFS should apply the information information contained in the current mitigation measures in each contained in the current stock stock assessment reports, NMFS agrees authorization based on numerous case- assessment reports when making and has done so, as shown in the specific factors, including the negligible impact determinations unless Negligible Impact Analysis and practicability of the measures for reliable, relevant new information that Determinations section of this preamble. applicant implementation, which may has yet to be fully assessed and In addition to considering quantitative consider such things as cost, impact on incorporated into the reports warrants information, i.e., the estimate of annual operations, and, in the case of a military some other treatment, and additionally M/SI and the stock’s PBR value, we also readiness activity, personnel safety, recommends that NMFS authorize a consider other relevant factors practicality of implementation, and smaller number of takes by M/SI than discussed in the stock assessment report impact on the effectiveness of the proposed, such that total estimated M/ (SAR), such as the nature of the military readiness activity. As NMFS SI does not exceed the potential recorded M/SI events that contribute to must make these determinations on a biological removal (PBR) value. the estimate and the information that is case-by-case basis, we therefore do not Response—NMFS does not concur available regarding stock abundance. agree with this recommendation. with the Commission’s recommendation NMFS disagrees with the Commission’s Comment—The Commission to reduce the authorized take number characterization of the discussion of recommends that NMFS (1) include a for the California coastal stock of these factors as ‘‘downplaying’’ the specific condition either in section bottlenose dolphin, or the underlying information in the SAR and notes the 219.5 of the final rule or in any LOA rationale, and does not adopt it. We also Commission’s apparent agreement with issued under the final rule requiring clarify that the proposed annual take the validity of these points, i.e., that the SWFSC to cease its activities and number for the stock (0.8) does not stock abundance is likely negatively consult with NMFS if the number of exceed the PBR value of 2.7. The annual biased and that some of the specific authorized takes has been met for any take number does exceed the residual incidents contributing to the SAR species and (2) reinforce that SWFSC PBR value of 0.7. (See Table 1, Table 9, estimate of annual M/SI are unlikely to should keep a running tally of the and Negligible Impact Analysis and recur. It is appropriate to perform a numbers of species-specific M/SI and Determinations for details of the negligible impact analysis by on-ice Level B harassment takes and the analysis.) The Commission suggests first considering the quantitative information line-kilometers surveyed to ensure that that application of NMFS’ new criteria available in the SAR in context with the authorized taking limits are not for negligible impact determinations other, qualitative information. Although exceeded. (NID) under section 101(a)(5)(E) of the not currently applicable to 101(a)(5)(A) Response—NMFS does not concur MMPA (NMFS, 2020) would show the NID evaluations, the 101(a)(5)(E) criteria with the recommendation and does not proposed authorized take number to not explicitly address this, stating ‘‘There adopt it. The LOA stipulates that the be negligible, and that NMFS should may be circumstances, such as when the allowable taking is limited to the explain its rationale if it believes that M/SI estimate is slightly below or authorized numbers specified in the the criteria are not relevant when slightly above the negligible impact LOA, and states that any taking assessing M/SI that occurs in contexts threshold(s), where the analyst may exceeding the authorized numbers (or other than commercial fishing. Indeed, deviate from the determination that any taking of a species for which take application of those criteria to NIDs would be dictated by strictly adhering to is not authorized) is prohibited and may made under section 101(a)(5)(A) of the the [negligible impact] thresholds. Such result in the modification, suspension, MMPA may not be appropriate. Section deviations may be due to the or revocation of the LOA. Additional, 101(a)(5)(E) only pertains to marine consideration of additional factors redundant language is not necessary. mammal stocks designated as depleted affecting the likelihood or impact of the Therefore, while we agree that SWFSC because of their listing under the ESA, incidental M/SI [. . . .] In such must ensure they do not exceed and the corresponding criteria were circumstances, NMFS should provide authorized takes, we do not agree that developed in that context. The the rationale in the document the recommended requirements are California coastal stock of bottlenose supporting the NID.’’ In this case, NMFS helpful. SWFSC is responsible for dolphin is not designated as a depleted has described the available quantitative ensuring that it does not operate in stock. NMFS has made no decisions on information, evaluated additional violation of an issued LOA. whether and how to apply the relevant information, and provided its Comment—The Commission 101(a)(5)(E) criteria to other negligible rationale in making a finding of recommends that NMFS require SWFSC impact determinations under section negligible impact. to include in each annual monitoring 101(a)(5)(A). Therefore, the appropriate Finally, the Commission does not report (1) the distance at which a negligible impact factor may be different suggest that the level of taking proposed pinniped is disturbed and the closest than those specified in the 101(a)(5)(E) for authorization is unrealistically high point of approach for each disturbance criteria. Applicability of those criteria to but, nevertheless, recommends that it be event; (2) the numbers of takes stocks not designated as depleted was reduced in order to, in the differentiated by species and age class not considered in development of the Commission’s estimation, make a for each disturbance event; and (3) the criteria and is not addressed by the finding of negligible impact. It would be raw sightings data in each annual Commission. Therefore, we reject the improper to lower arbitrarily NMFS’ monitoring report. suggestion that the criteria may be used best estimate of anticipated taking in Response—NMFS concurs with the to show deficiency in NMFS’ NID for order to make the necessary finding. recommendation and has included the the California coastal stock of bottlenose Rather, that best estimate must be suggested reporting requirements in the dolphin. Please see the discussion of evaluated in context of all relevant

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available information and, if the discussed in greater detail later in this stocks are defined because we analyze estimated taking is found to be likely to document (see Negligible Impact the potential population-level effects of cause greater than a negligible impact Analysis and Determinations). the specified activity to the relevant on the affected species or stock, Marine mammal abundance estimates stock. However, where stocks are not additional mitigation that may reduce presented in this document represent defined, IUCN status can provide a the amount of anticipated taking may be the total number of individuals that useful reference. considered. In this case, NMFS has make up a given stock or the total California Current considered the amount of anticipated number estimated within a particular taking in context of all relevant study or survey area. NMFS’s stock In the CCE, 33 species (with 40 available information and has made the abundance estimates for most species managed stocks) are considered to have necessary finding of negligible impact. represent the total estimate of the potential to co-occur with SWFSC individuals within the geographic area, activities. Species that could potentially Description of Marine Mammals in the if known, that the stock comprises. For occur in the research area but are not Area of the Specified Activity some species, this geographic area may expected to have the potential for We have reviewed SWFSC’s species extend beyond U.S. waters. Survey interaction with SWFSC research gear or descriptions—which summarize abundance (as compared to stock or that are not likely to be harassed by available information regarding status species abundance) is the total number SWFSC’s use of active acoustic devices and trends, distribution and habitat of individuals estimated within the are described briefly but omitted from preferences, behavior and life history, survey area, which may or may not align further analysis. These include and auditory capabilities of the completely with a stock’s geographic extralimital species, which are species potentially affected species—for range as defined in the SARs. These that do not normally occur in a given accuracy and completeness and refer the surveys may also extend beyond U.S. area but for which there are one or more reader to Sections 3 and 4 of SWFSC’s waters. occurrence records that are considered application, instead of reprinting the All stocks occurring in the CCE are beyond the normal range of the species. information here. Additional assessed in either NMFS’ U.S. Alaska Species considered to be extralimital information regarding population trends SARs or U.S. Pacific SARs. All values here include the North Pacific right and threats may be found in NMFS’ presented in Table 1 are the most recent whale (Eubalaena japonica) and the SARs (www.fisheries.noaa.gov/national/ available at the time of writing and are Bryde’s whale (Balaenoptera edeni marine-mammal-protection/marine- available in the 2019 SARs (Carretta et brydei). In addition, the sea otter is mammal-stock-assessments), and more al., 2020; Muto et al., 2020). Antarctic found in coastal waters, with the general information about these species stocks are not generally defined by southern sea otter (Enhydra lutris (e.g., physical and behavioral NMFS, and information relating to nereis) found in California and the descriptions) may be found on NMFS’ species occurring in the AMLR is northern (or eastern) sea otter (E. l. website (www.fisheries.noaa.gov/find- lacking relative to those occurring in the kenyoni; Washington stock only) found species). CCE. For species occurring in AMLR, in Washington. However, sea otters are Table 1 lists all species with expected we provide International Union for the managed by the U.S. Fish and Wildlife potential for occurrence in the specified Conservation of Nature (IUCN) status. Service and are not considered further geographical regions where SWFSC The IUCN systematically assesses the in this document. Most survey activity plans to continue the specified activities relative risk of extinction for terrestrial occurs offshore and is therefore less and summarizes information related to and aquatic plant and animal species likely to interact with coastal species the population or stock, including via a classification scheme using five such as harbor porpoise, the coastal regulatory status under the MMPA and designations, including three threatened stock of bottlenose dolphin, or gray ESA and PBR, where known. For categories (Critically Endangered, whales (during the northbound taxonomy, we follow Committee on Endangered, and Vulnerable) and two migration), although these species are Taxonomy (2020). PBR, defined by the non-threatened categories (Near considered further in this document. MMPA as the maximum number of Threatened and Least Concern) SWFSC does not conduct research animals, not including natural (www.iucnredlist.org/; accessed June 22, activities in the inland waters of mortalities, that may be removed from a 2020). These assessments are generally Washington. Therefore, stocks occurring marine mammal stock while allowing made relative to the species’ global solely in those waters (i.e., harbor that stock to reach or maintain its status, and therefore may have limited porpoise and harbor seal) are not optimum sustainable population, is applicability when marine mammal addressed herein. TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF SWFSC RESEARCH ACTIVITIES IN THE CCE

ESA/ Stock MMPA abundance Annual Common name Scientific name Stock status; PBR 3 strategic (CV, Nmin, most recent M/SI abundance survey) 2 (Y/N) 1

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Eschrichtiidae: Gray whale ...... Eschrichtius robustus ...... Eastern North Pacific (ENP) ..... -; N 26,960 (0.05; 25,849; 801 139 2016). Family Balaenopteridae (rorquals): Humpback whale ...... Megaptera novaeangliae kuzira California/Oregon/Washington E/D; Y 2,900 (0.05; 2,784; 2014) 9 16.7 ≥42.1 (CA/OR/WA). Minke whale ...... Balaenoptera acutorostrata CA/OR/WA ...... -; N 636 (0.72; 369; 2014) ..... 3.5 ≥1.3 scammoni. Sei whale ...... B. borealis borealis ...... ENP ...... E/D; Y 519 (0.4; 374; 2014) ...... 0.75 ≥0.2 Fin whale ...... B. physalus physalus ...... CA/OR/WA ...... E/D; Y 9,029 (0.12; 8,127; 2014) 81 ≥43.5

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TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF SWFSC RESEARCH ACTIVITIES IN THE CCE— Continued

ESA/ Stock MMPA abundance Annual Common name Scientific name Stock status; PBR (CV, N , most recent M/SI 3 strategic min abundance survey) 2 (Y/N) 1

Blue whale ...... B. musculus musculus ...... ENP ...... E/D; Y 1,496 (0.44; 1,050; 2014) 9 1.2 ≥19.4

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Physeteridae: Sperm whale ...... Physeter macrocephalus ...... CA/OR/WA ...... E/D; Y 1,997 (0.57; 1,270; 2014) 2.5 0.6 Family Kogiidae: Pygmy sperm whale ...... Kogia breviceps ...... CA/OR/WA ...... -; N 4,111 (1.12; 1,924; 2014) 19.2 0 Dwarf sperm whale ...... K. sima ...... CA/OR/WA 5 ...... -; N Unknown ...... n/a 0 Family Ziphiidae (beaked whales): Cuvier’s beaked whale ...... Ziphius cavirostris ...... CA/OR/WA ...... -; N 3,274 (0.67; 2,059; 2014) 21 <0.1 Baird’s beaked whale ...... Berardius bairdii ...... CA/OR/WA ...... -; N 2,697 (0.6; 1,633; 2014) 16 0 Hubbs’ beaked whale ...... Mesoplodon carlhubbsi ...... CA/OR/WA 6 ...... -; N 3,044 (0.54; 1,967; 2014) 20 0.1 Blainville’s beaked whale ... M. densirostris ...... Ginkgo-toothed beaked M. ginkgodens ...... whale. Perrin’s beaked whale ...... M. perrini ...... Lesser (pygmy) beaked M. peruvianus ...... whale. Stejneger’s beaked whale .. M. stejnegeri ...... Family Delphinidae: Common bottlenose dolphin Tursiops truncatus truncatus .... CA/OR/WA Offshore ...... -; N 1,924 (0.54; 1,255; 2014) 11 ≥1.6 California Coastal ...... -; N 453 (0.06; 346; 2011) ..... 2.7 ≥2.0 Striped dolphin ...... Stenella coeruleoalba ...... CA/OR/WA ...... -; N 29,211 (0.2; 24,782; 238 ≥0.8 2014). ENP long-beaked common Delphinus delphis bairdii ...... California ...... -; N 101,305 (0.49; 68,432; 657 ≥35.4 dolphin. 2014). Common dolphin ...... D. d. delphis ...... CA/OR/WA ...... -; N 969,861 (0.17; 839,325; 8,393 ≥40 2014). Pacific white-sided dolphin Lagenorhynchus obliquidens .... CA/OR/WA ...... -; N 26,814 (0.28; 21,195; 191 7.5 2014). Northern right whale dolphin Lissodelphis borealis ...... CA/OR/WA ...... -; N 26,556 (0.44; 18,608; 179 3.8 2014). Risso’s dolphin ...... Grampus griseus ...... CA/OR/WA ...... -; N 6,336 (0.32; 4,817; 2014) 46 ≥3.7 Killer whale ...... Orcinus orca 4 ...... West Coast Transient 7 ...... -; N 243 (n/a; 2009) ...... 2.4 0 ENP Offshore ...... -;N 300 (0.1; 276; 2012) ...... 2.8 0 ENP Southern Resident ...... E/D; Y 75 (n/a; 2018) ...... 0.13 0 Short-finned pilot whale ...... Globicephala macrorhynchus ... CA/OR/WA ...... -; N 836 (0.79; 466; 2014) ..... 4.5 1.2 Family Phocoenidae (por- poises): Harbor porpoise ...... Phocoena phocoena vomerina Morro Bay ...... -; N 4,255 (0.56; 2,737; 2012) 66 ≥0.4 Monterey Bay ...... -; N 3,455 (0.58; 2,197; 2013) 23 ≥0.2 San Francisco-Russian River ... -; N 7,524 (0.57; 4,801; 2017) 48 ≥0.6 Northern CA/Southern OR ...... -; N 24,195 (0.4; 17,447; 349 ≥0.2 2016). Northern OR/WA Coast ...... -; N 21,487 (0.44; 15,123; 151 ≥3 2011). Dall’s porpoise ...... Phocoenoides dalli dalli ...... CA/OR/WA ...... -; N 25,750 (0.45; 17,954; 172 0.3 2014).

Order Carnivora—Superfamily Pinnipedia

Family Otariidae (eared seals and sea lions): Guadalupe fur seal ...... Arctocephalus philippii Mexico to California ...... T/D; Y 34,187 (n/a; 31,019; 1,062 10 ≥3.8 townsendi. 2013). Northern fur seal ...... Callorhinus ursinus ...... Pribilof Islands/Eastern Pacific D; Y 620,660 (0.2; 525,333; 11,295 399 2016). California ...... -; N 14,050 (n/a; 7,524; 2013) 451 1.8 California sea lion ...... Zalophus californianus ...... United States ...... -; N 257,606 (n/a; 233,515; 14,011 ≥321 2014). Steller sea lion ...... Eumetopias jubatus Eastern U.S...... -; N 43,201 (n/a; 2017) ...... 2,592 112 monteriensis. Family Phocidae (earless seals): Harbor seal ...... Phoca vitulina richardii ...... California ...... -; N 30,968 (n/a; 27,348; 1,641 43 2012). OR/WA Coast 8 ...... -; N 24,732 (0.12; 22,380; n/a 10.6 1999). Northern elephant seal ...... Mirounga angustirostris ...... California Breeding ...... -; N 179,000 (n/a; 81,368; 4,882 8.8 2010). 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. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.

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2 NMFS marine mammal stock assessment reports at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coeffi- cient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For most stocks of killer whales, the abundance values rep- resent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated CV. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge of the species’ (or similar species’) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the minimum abundance may represent ac- tual counts of all animals ashore. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fish- eries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented in the 2019 SARs. 4 Transient and resident killer whales are considered unnamed subspecies (Committee on Taxonomy, 2020). 5 No information is available to estimate the population size of dwarf sperm whales off the U.S. West Coast, as no sightings of this species have been documented despite numerous vessel surveys of this region (Carretta et al., 2017). Dwarf and pygmy sperm whales are difficult to differentiate at sea but, based on previous sight- ing surveys and historical stranding data, it is thought that recent ship survey sightings were of pygmy sperm whales. 6 The six species of Mesoplodont beaked whales occurring in the CA/OR/WA region are managed as a single stock due to the rarity of records and the difficulty in distinguishing these animals to species in the field. Based on bycatch and stranding records, it appears that M. carlhubbsi is the most commonly encountered of these species (Carretta et al., 2008; Moore and Barlow, 2013). 7 The abundance estimate for this stock includes only animals from the ‘‘inner coast’’ population occurring in inside waters of southeastern Alaska, British Columbia, and Washington—excluding animals from the ‘‘outer coast’’ subpopulation, including animals from California—and therefore should be considered a minimum count. For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now considered outdated, was 354. 8 Abundance estimate for this stock is not considered current. PBR is therefore considered undetermined, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as it represents the best available information for use in this document. 9 These stocks are known to spend a portion of their time outside the U.S. EEZ. Therefore, the PBR presented here is the allocation for U.S. waters only and is a portion of the total. The total PBR for blue whales is 2.1 (7⁄12 allocation for U.S. waters), and the total for CA/OR/WA humpback whales is 33.4 (one half allocation for U.S. waters). Annual M/SI presented for these species is for U.S. waters only. 10 This represents annual M/SI in U.S. waters. However, the vast majority of M/SI for this stock—the level of which is unknown—would likely occur in Mexican waters. There is insufficient information to determine whether mortality in Mexico exceeds the PBR for this stock, but given the observed growth of the population over time, this is unlikely (Carretta et al., 2020).

Prior to 2016, humpback whales were interact with certain U.S. commercial estimated M/SI attributed to the fishery listed under the ESA as an endangered fisheries, as required by Section 118 of over the period from 2008–2017 is 0.56 species worldwide. Following a 2015 the MMPA. The immediate goal of a (CV = 0.78). Two short-finned pilot global status review (Bettridge et al., take reduction plan is to reduce, within whales were observed taken in the DGN 2015), NMFS established 14 distinct six months of its implementation, the fishery in 2014, leading to a mean population segments (DPS) with M/SI of marine mammals incidental to annual M/SI estimate of 1.2 (CV = 0.39) different listing statuses (81 FR 62259; commercial fishing to less than the PBR for the fishery. None of the other species September 8, 2016) pursuant to the ESA. level. The long-term goal is to reduce, were observed taken in the fishery in The DPSs that occur in U.S. waters do within five years of its implementation, the most recent five-year period for not necessarily equate to the existing the M/SI of marine mammals incidental which data are available, though some stocks designated under the MMPA and to commercial fishing to insignificant have estimated mean annual M/SI shown in Table 1. Because MMPA levels, approaching a zero serious injury values for the fishery that are >0. More stocks cannot be portioned, i.e., parts and mortality rate, taking into account information is available online at: managed as ESA-listed while other parts the economics of the fishery, the www.fisheries.noaa.gov/national/ managed as not ESA-listed, until such availability of existing technology, and marine-mammal-protection/pacific- time as the MMPA stock delineations existing state or regional fishery offshore-cetacean-take-reduction-plan. are reviewed in light of the DPS management plans. Take reduction Of the stocks of concern, the SWFSC has designations, NMFS considers the teams are convened to develop these requested the authorization of existing humpback whale stocks under plans. incidental M/SI for the short-finned the MMPA to be endangered and For marine mammals in the CCE, pilot whale only (see ‘‘Estimated Take depleted for MMPA management there is currently one take reduction by Incidental Harassment’’ later in this purposes (e.g., selection of a recovery plan in effect (Pacific Offshore Cetacean document). The SWFSC does not use factor, stock status). Take Reduction Plan). The goal of this drift gillnets in its fisheries research Within U.S. West Coast waters, three plan is to reduce M/SI of several marine program; therefore, take reduction current DPSs may occur: The Hawaii mammal stocks incidental to the measures applicable to the CA DGN DPS (not listed), Mexico DPS California thresher shark/swordfish drift fisheries are not relevant to the SWFSC. (threatened), and Central America DPS gillnet fishery (CA DGN). A team was Unusual Mortality Events (UME)—A (endangered). According to Wade et al. convened in 1996 and a final plan UME is defined under the MMPA as a (2016), whales off of Washington are produced in 1997 (62 FR 51805; October stranding that is unexpected; involves a most likely to be from the Hawaii DPS 3, 1997). Marine mammal stocks of significant die-off of any marine (52.9 percent), but are almost equally concern initially included the mammal population; and demands likely to be from the Mexico DPS (41.9 California, Oregon, and Washington immediate response. From 1991 to the percent), and could also be from the stocks for all CCE beaked whales, short- present, there have been 16 formally Central America DPS (14.7 percent). Off finned pilot whales, pygmy sperm recognized UMEs on the U.S. West of Oregon and California, whales are whales, sperm whales, and humpback Coast involving species under NMFS’ most likely to be from the Mexico DPS whales. The most recent five-year jurisdiction. The only currently ongoing (89.6 percent), with a 19.7 percent averages of M/SI for all stocks except investigations involve Guadalupe fur probability of an encountered whale the humpback whale are below PBR. For seals and gray whales along the west being from the Central America DPS. humpback whales, the majority of total coast. Note that these probabilities reflect the annual M/SI is attributed to other Increased strandings of Guadalupe fur upper limit of the 95 percent confidence fisheries—notably pot/trap fisheries— seals (up to eight times the historical interval of the probability of occurrence; and ship strikes, with no observed M/ average) have occurred along the entire therefore, numbers may not sum to 100 SI in the DGN fishery from 2013–2017, coast of California and extending into percent for a given area. and estimated mean annual M/SI in the Oregon and Washington. Increased Take Reduction Planning—Take fishery at <0.1 (CV = 1.9) over the same strandings in California were reported reduction plans are designed to help period. The most recent observed take of beginning in January 2015 and peaked recover and prevent the depletion of a sperm whale in the DGN fishery was from April through June 2015, but have strategic marine mammal stocks that in 2010, though the mean annual remained well above average.

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Strandings in Oregon and Washington whale lice (cyamid) loads. Necropsies ecosystem. In the ARA, seventeen became elevated starting in 2019 and are have been conducted on a subset of species are considered to have the five times higher than the historical whales with additional findings of potential to co-occur with SWFSC average. Findings from the majority of vessel strike in three whales and activities. Marine mammals in the stranded animals include malnutrition entanglement in one whale. In Mexico, AMLR do not constitute stocks under with secondary bacterial and parasitic 50–55 percent of the free-ranging whales U.S. jurisdiction; therefore, the stocks infections, and the UME has been observed in the lagoons in winter have are not managed by NMFS, there are no attributed to ecological factors. For more been reported as ‘‘skinny’’ compared to SARs, and substantially less information information, please visit: the annual average of 10–12 percent is available for these species in relation ‘‘skinny’’ whales normally seen. The www.fisheries.noaa.gov/national/ to the stocks or populations and their cause of the UME is as yet marine-life-distress/2015-2020- occurrence in the ARA than is available undetermined. For more information, guadalupe-fur-seal-unusual-mortality- for CCE stocks (e.g., PBR is not event-california. please visit: www.fisheries.noaa.gov/ national/marine-life-distress/2019-2020- calculated for AMLR stocks, and Since January 1, 2019, elevated gray gray-whale-unusual-mortality-event- strategic designations are not made). whale strandings have occurred along along-west-coast-and. Extralimital species in the ARA include the west coast of North America from Additional UMEs in the past ten years the pygmy right whale (Caperea Mexico through Alaska. As of include those involving California sea marginata), sei whale, Cuvier’s beaked September 2, 2020, there have been a lions (2013–2016; ecological factors) whale, Shepherd’s beaked whale total of 378 whales reported in the and large whales in Alaska and British (Tasmacetus shepherdi), Gray’s beaked event, with approximately 168 dead Columbia (2015–2016; undetermined whale (Mesoplodon grayi), and strap- whales in Mexico, 194 whales in the cause with secondary ecological toothed beaked whale (M. layardii), United States (53 in California; 9 in factors). For more information on UMEs, which have distributions that only Oregon; 46 in Washington, 86 in please visit: www.fisheries.noaa.gov/ border the northernmost edge of the Alaska), and 16 whales in British national/marine-mammal-protection/ ARA. The Ross seal (Ommatophoca Columbia, Canada. For the United marine-mammal-unusual-mortality- rossii) is also considered extralimital to States, the historical 18-year 5-month events. the ARA due to its preference for dense average (Jan–May) is 14.8 whales for the four states for this same time-period. Antarctic pack ice, which is not typically present Several dead whales have been The SWFSC’s Antarctic Research Area in the ARA. emaciated with moderate to heavy (ARA) comprises a portion of the AMLR TABLE 2—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF SWFSC RESEARCH ACTIVITIES IN THE AMLR

ESA/MMPA/IUCN Abundance Common name Scientific name Stock 2 status 3 (CV) 4

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Balaenidae (right whales): Southern right whale ...... Eubalaena australis ...... E/D/LC 1,755 (0.62).5 Family Balaenopteridae (rorquals): Humpback whale ...... Megaptera novaeangliae australis ...... E/D/LC 9,484 (0.28).5 Antarctic minke whale ...... Balaenoptera bonaerensis ...... -/NT 18,125 (0.28).5 Fin whale ...... B. physalus quoyi ...... E/D/VU 4,672 (0.42).5 Blue whale ...... B. musculus intermedia ...... E/D/EN 1,700 (95% CI 860–2,900).6

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Physeteridae: Sperm whale ...... Physeter macrocephalus ...... E/D/VU 12,069 (0.17).7 Family Ziphiidae (beaked whales): Arnoux’ beaked whale ...... Berardius arnuxii ...... -/DD Unknown. Southern bottlenose whale ...... Hyperoodon planifrons ...... -/LC 53,743 (0.12).8 Family Delphinidae: Hourglass dolphin ...... Lagenorhynchus cruciger ...... -/LC 144,300 (0.17).9 Killer whale ...... Orcinus orca 1 ...... -/DD 24,790 (0.23).8 Long-finned pilot whale ...... Globicephala melas edwardii ...... -/LC 200,000 (0.35).9 Family Phocoenidae (porpoises): Spectacled porpoise ...... Phocoena dioptrica ...... -/LC Unknown.

Order Carnivora—Superfamily Pinnipedia

Family Otariidae (eared seals and sea lions): Antarctic fur seal ...... Arctocephalus gazella ...... South Georgia ...... -/LC 2,700,000.10 Family Phocidae (earless seals): Southern elephant seal ...... Mirounga leonina ...... South Georgia ...... -/LC 401,572.11 Weddell seal ...... Leptonychotes weddellii ...... -/LC 500,000–1,000,000.12 Crabeater seal ...... Lobodon carcinophaga ...... -/LC 5,000,000–10,000,000.12 Leopard seal ...... Hydrurga leptonyx ...... -/LC 222,000–440,000.12 1 Three distinct forms of killer whale have been described from Antarctic waters; referred to as types A, B, and C, they are purported prey specialists on Antarctic minke whales, seals, and fish, respectively (Pitman and Ensor, 2003; Pitman et al., 2010). 2 For most species in the AMLR, stocks are not delineated and entries refer generally to individuals of the species occurring in the research area. 3 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Any species listed under the ESA is automatically designated under the MMPA as depleted. IUCN status: Endan- gered (EN), Vulnerable (VU), Near Threatened (NT), Least Concern (LC), Data Deficient (DD). 4 CV is coefficient of variation. All abundance estimates, except for those from Reilly et al. (2004) (right, humpback, minke, and fin whales), are for entire Southern Ocean (i.e., waters south of 60°S) and not the smaller area comprising the SWFSC research area.

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5 Abundance estimates reported in Reilly et al. (2004) for the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) survey area from 2000. Surveys include Antarctic Peninsula (473,300 km2) and Scotia Sea (1,109,800 km2) strata, which correspond roughly to ARA, as reported by Hewitt et al. (2004). 6 Southern Ocean abundance estimate (Branch et al., 2007). CI is confidence interval. 7 Southern Ocean abundance estimate (IWC, 2001 in Whitehead, 2002). 8 Southern Ocean abundance estimate from circumpolar surveys covering 68 percent of waters south of 60°S from 1991–98 (Branch and Butterworth, 2001). 9 Southern Ocean abundance estimate derived from surveys conducted from 1976–88 (Kasamatsu and Joyce, 1995). 10 South Georgia abundance estimate; likely >95 percent of range-wide abundance (Forcada and Staniland, 2009). Genetic evidence shows two distinct population regions, likely descended from surviving post-sealing populations at South Georgia, BouvetArgentina, the South Georgia population in the South Atlantic Ocean, the Kerguelen population in the South Indian Ocean and the Macquarie population in the South Pacific Ocean (Slade et al., 1998; Hoelzel et al., 2001). Animals occurring in ARA are likely to belong to South Georgia population, which includes subpopulations at South Georgia Island (>99% of population) and at the South Orkney and South Shetland Islands; South Georgia population abundance estimate from 2001 (McMahon et al., 2005). 12 Range-wide abundance estimates (Thomas and Terhune, 2009; Bengtson, 2009; Rogers, 2009).

Marine Mammal Hearing To reflect this, Southall et al. (2007) marine mammal hearing groups. recommended that marine mammals be Generalized hearing ranges were chosen Hearing is the most important sensory divided into functional hearing groups based on the approximately 65 dB modality for marine mammals based on directly measured or estimated threshold from the normalized underwater, and exposure to hearing ranges on the basis of available composite audiograms, with an anthropogenic sound can have behavioral response data, audiograms exception for lower limits for low- deleterious effects. To appropriately derived using auditory evoked potential frequency cetaceans where the result assess the potential effects of exposure techniques, anatomical modeling, and was deemed to be biologically to sound, it is necessary to understand other data. Note that no direct implausible and the lower bound from the frequency ranges marine mammals measurements of hearing ability have Southall et al. (2007) retained. Marine are able to hear. Current data indicate been successfully completed for mammal hearing groups and their that not all marine mammal species mysticetes (i.e., low-frequency have equal hearing capabilities (e.g., cetaceans). associated hearing ranges are provided Richardson et al., 1995; Wartzok and Subsequently, NMFS (2018) described in Table 3. Ketten, 1999; Au and Hastings, 2008). generalized hearing ranges for these

TABLE 3—MARINE MAMMAL HEARING GROUPS [NMFS, 2018]

Generalized hearing Hearing group range *

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

For more detail concerning these 2. Of the twelve cetacean species that have also been provided in other groups and associated frequency ranges, may be present, five are classified as Federal Register notices (e.g., 81 FR please see NMFS (2018) for a review of low-frequency cetaceans (i.e., all 38516; 83 FR 37638; 84 FR 6576), and available information. Within the CCE, mysticete species), five are classified as section 7 of SWFSC’s application 33 marine mammal species (27 cetacean mid-frequency cetaceans (i.e., all provides a discussion of the potential and six pinniped [four otariid and two delphinid and ziphiid species effects of their specified activity, which phocid] species) have the potential to [excluding the hourglass dolphin] and we have reviewed for accuracy and co-occur with SWFSC research the sperm whale), and two are classified completeness. No significant new activities. Please refer to Table 1. Of the as high-frequency cetaceans (i.e., the information is available, and these 27 cetacean species that may be present, hourglass dolphin and spectacled discussions provide the necessary six are classified as low-frequency porpoise). adequate and relevant information cetaceans (i.e., all mysticete species), Potential Effects of the Specified regarding the potential effects of seventeen are classified as mid- Activity on Marine Mammals and Their SWFSC’s specified activity on marine frequency cetaceans (i.e., all delphinid Habitat mammals and their habitat. Therefore, and ziphiid species and the sperm Detailed descriptions of the potential we refer the reader to these documents whale), and four are classified as high- effects of the various elements of the rather than repeating the information frequency cetaceans (i.e., porpoises and SWFSC’s specified activity on marine here. The referenced information Kogia spp.). Within the AMLR, mammals and their habitat were includes a summary and discussion of seventeen marine mammal species provided in association with the 2015 the ways that components of the (twelve cetacean and five pinniped [one SWFSC rulemaking (80 FR 8166; specified activity (e.g., gear deployment, otariid and four phocid] species) have February 15, 2015). Additionally, use of active acoustic sources, visual the potential to co-occur with SWFSC detailed descriptions of the potential disturbance) may impact marine research activities. Please refer to Table effects of similar specified activities mammals and their habitat.

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As stated previously, the use of estimate of potential incidents of Level Below we describe how the potential certain research gears, including trawl B harassment. In summary, while we take is estimated. nets, hook and line gear, and purse authorize the amount of take by Level B Estimated Take Due to Gear Interaction seine nets, has the potential to result in harassment indicated in the Estimated interaction with marine mammals. In Take section, and consider these In order to determine the number of the event of a marine mammal potential takings at face value in our incidental takes requested for interaction with research gear, injury, negligible impact analysis, it is authorization, SWFSC retained the serious injury, or mortality may result uncertain whether use of these acoustic approach to estimating their requested from entanglement or hooking. systems are likely to cause take at all, take numbers that was developed in Exposure to sound through the use of much less at the estimated levels. support of the 2015 rule. That approach active acoustic systems for research The Estimated Take section later in was based on historical incidents of gear purposes may result in Level B this document includes a quantitative interaction and on an assessment of harassment. However, as detailed in the analysis of the number of individuals which species of marine mammal that previously referenced discussions, Level that are expected to be taken by this have not historically been taken might A harassment in the form of permanent activity. The Negligible Impact Analysis have similar risk of interaction to those threshold shift (PTS) is extremely and Determinations section considers species that have been taken. In unlikely to occur, and we consider such the potential effects of the specified particular, records from the year 2008— effects discountable. Finally, in the activity, the Estimated Take section, and which remains the year with the highest Antarctic only, it is expected that the Mitigation section, to draw number of gear interaction incidents— hauled pinnipeds may be disturbed by conclusions regarding the likely impacts were used as the basis for generating a approaching researchers such that Level of these activities on the reproductive precautionary, worst-case assessment of B harassment could occur. Ship strike is success or survivorship of individuals potential takes. Reporting from 2015–19 not a reasonably anticipated outcome of and how those impacts on individuals under the current regulations SWFSC research activities, given the are likely to impact marine mammal demonstrates that this approach was small amount of distance covered by species or stocks. indeed a precautionary one, as annual research vessels and their relatively Estimated Take numbers of takes have remained well slow speed in comparison to This section provides an estimate of below those recorded in 2008, and only commercial shipping traffic (i.e., the the number of incidental takes that may one additional species that had not primary cause of marine mammal vessel be authorized under the rule, which will historically been taken in SWFSC strikes). inform both NMFS’s consideration of research gear in 2015 has subsequently With specific reference to Level B whether the number of takes is ‘‘small’’ been taken (common dolphin; see Table harassment that may occur as a result of and the negligible impact 4). SWFSC has elected to carry forward acoustic exposure, we note that the determination. this precautionary approach to their analytical methods from the original Except with respect to certain take authorization request in support of 2015 analysis are retained here. activities not pertinent here, section this rulemaking, and we incorporate it However, the state of science with 3(18) of the MMPA defines into our rulemaking, as described in regard to our understanding of the likely ‘‘harassment’’ as: Any act of pursuit, further detail below. potential effects of the use of systems torment, or annoyance which (i) has the The approach to estimating the like those used by SWFSC has advanced potential to injure a marine mammal or number of potential incidents of take in the preceding five years, as have marine mammal stock in the wild (Level that could occur through gear readily available approaches to A harassment); or (ii) has the potential interaction first requires consideration estimating the acoustic footprints of to disturb a marine mammal or marine of SWFSC’s record of past such such sources, with the result that we mammal stock in the wild by causing incidents. We then consider in addition view this analysis as highly disruption of behavioral patterns, other species that may have similar conservative. Although more recent including, but not limited to, migration, vulnerabilities to SWFSC trawl and literature provides documentation of breathing, nursing, breeding, feeding, or longline gear as those species for which marine mammal responses to the use of sheltering (Level B harassment). we have historical interaction records. these and similar acoustic systems (e.g., Take of marine mammals incidental Historical interactions with research Cholewiak et al., 2017; Quick et al., to SWFSC research activities could gear are described in Tables 4 and 5, 2017; Varghese et al., 2020), the occur as a result of (1) injury or and we anticipate that all species that described responses do not generally mortality due to gear interaction in the interacted with SWFSC fisheries comport with the degree of severity that CCE (Level A harassment, serious research gear historically could should be associated with Level B injury, or mortality); (2) behavioral potentially be taken in the future. harassment, as defined by the MMPA. disturbance resulting from the use of Available records are for the years 2006 We retain the 2015 analytical approach active acoustic sources (Level B through present. All historical SWFSC for consistency with existing analyses harassment only); or (3) behavioral interactions have taken place in the and for purposes of efficiency here, and disturbance of pinnipeds resulting from CCE. The locations of incidental take consider this acceptable because the incidental approach of researchers in events from 2015–2019 are shown in approach provides a conservative the Antarctic (Level B harassment only). Figure 6–1 of SWFSC’s application. TABLE 4—HISTORICAL INTERACTIONS WITH TRAWL GEAR

Number Number Gear 1 Survey Date Species released Total killed alive

Midwater trawl ...... Coastal Pelagic Species 4/24/2006 Northern fur seal (CA stock) .. 1 ...... 1 (CPS). Midwater trawl ...... CPS ...... 4/29/2007 Northern fur seal (CA stock) .. 1 ...... 1

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TABLE 4—HISTORICAL INTERACTIONS WITH TRAWL GEAR—Continued

Number Number Gear 1 Survey Date Species released Total killed alive

Midwater trawl 2 ...... Juvenile Rockfish ...... 5/30/2007 Northern fur seal (eastern Pa- 1 ...... 1 cific stock). Midwater trawl ...... CPS ...... 4/18/2008 California sea lion ...... 1 ...... 1 Midwater trawl ...... CPS ...... 4/21/2008 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl ...... CPS ...... 4/26/2008 Pacific white-sided dolphin ..... 2 ...... 2 Midwater trawl ...... CPS ...... 4/27/2008 California sea lion ...... 1 ...... 1 Midwater trawl ...... CPS ...... 4/27/2008 Northern fur seal (eastern Pa- 1 ...... 1 cific stock). Midwater trawl 2 ...... Juvenile Rockfish ...... 6/15/2008 California sea lion ...... 1 2 3 Midwater trawl ...... CPS ...... 7/19/2008 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl ...... CPS ...... 7/28/2008 California sea lion ...... 1 ...... 1 Midwater trawl ...... CPS ...... 7/31/2008 Northern fur seal (CA stock) .. 1 ...... 1 Midwater trawl ...... CPS ...... 8/3/2008 Northern fur seal (CA stock) .. 1 ...... 1 Midwater trawl ...... CPS ...... 8/9/2008 Pacific white-sided dolphin ..... 11 ...... 11 Midwater trawl ...... CPS ...... 8/9/2008 Northern right whale dolphin .. 6 ...... 6 Midwater trawl ...... CPS ...... 8/14/2008 California sea lion ...... 9 ...... 9 Midwater trawl ...... CPS ...... 5/1/2009 Pacific white-sided dolphin ...... 3 3 Midwater trawl 2 ...... Juvenile Rockfish ...... 5/25/2009 California sea lion ...... 1 1 Midwater trawl ...... CPS ...... 4/18/2010 Pacific white-sided dolphin ...... 1 1 Midwater trawl ...... CPS ...... 4/25/2010 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl 2 ...... Juvenile Rockfish ...... 9/10/2010 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl ...... CPS ...... 4/3/2011 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl ...... Juvenile Salmon ...... 9/9/2011 California sea lion ...... 1 ...... 1 Midwater trawl ...... Juvenile Salmon ...... 9/10/2011 Pacific white-sided dolphin ..... 6 ...... 6 Midwater trawl ...... CPS ...... 6/29/2012 Pacific white-sided dolphin ...... 1 1 Midwater trawl ...... CPS ...... 8/18/2012 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl ...... CPS ...... 8/24/2012 Pacific white-sided dolphin ..... 2 ...... 2 Midwater trawl ...... CPS ...... 8/1/2013 Pacific white-sided dolphin ..... 1 2 3 Midwater trawl ...... Juvenile Salmon ...... 9/14/2013 Pacific white-sided dolphin ..... 3 ...... 3 Midwater trawl 2 ...... Juvenile Rockfish ...... 6/1/2014 Pacific white-sided dolphin ..... 1 ...... 1 Surface trawl ...... Sardine-Hake Acoustic Trawl 8/26/2015 Pacific white-sided dolphin ..... 1 ...... 1 Surface trawl ...... Juvenile Salmon ...... 9/14/2015 California sea lion ...... 1 1 Midwater trawl 2 ...... Juvenile Rockfish ...... 5/15/2016 Pacific white-sided dolphin ..... 1 ...... 1 Surface trawl ...... CPS ...... 7/17/2016 Pacific white-sided dolphin ..... 7 1 8 Midwater trawl 2 ...... Juvenile Rockfish ...... 6/14/2018 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl 2 ...... Juvenile Rockfish ...... 6/21/2018 California sea lion ...... 1 ...... 1 Midwater trawl ...... CPS ...... 7/24/2018 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl ...... CPS ...... 8/27/2018 Pacific white-sided dolphin ..... 1 ...... 1 Surface trawl ...... CCE Survey (CCES) ...... 6/22/2019 Pacific white-sided dolphin ..... 2 ...... 2 Midwater trawl ...... CCES ...... 8/8/2019 Pacific white-sided dolphin ..... 2 ...... 2 Midwater trawl ...... CCES ...... 8/8/2019 Pacific white-sided dolphin ..... 1 ...... 1 Midwater trawl ...... CCES ...... 8/26/2019 Common dolphin (long- 1 ...... 1 beaked).

Total individuals captured (total number of interactions given in parentheses) Northern fur seal (6) ...... 6 ...... 6 California sea lion (9) ...... 15 4 19 Pacific white-sided dolphin 49 8 57 (25). Northern right whale dolphin 6 ...... 6 (1). Common dolphin (1) ...... 1 ...... 1 1 All incidents involved use of the NETS Nordic 264 midwater trawl, except as noted below. 2 These incidents involved use of the modified-Cobb midwater trawl.

TABLE 5—HISTORICAL INTERACTIONS WITH LONGLINE GEAR

Number Gear Survey Date Species Number killed released alive Total

Pelagic longline ...... Highly Migratory Species 9/6/2008 California sea lion ...... 1 1 (HMS). Pelagic longline ...... HMS ...... 9/15/2008 California sea lion ...... 1 1 Pelagic longline ...... Thresher Shark ...... 9/18/2009 California sea lion ...... 1 1 Pelagic longline ...... HMS ...... 7/27/2010 California sea lion ...... 1 1 Pelagic longline ...... HMS ...... 6/23/2012 California sea lion ...... 1 1 Pelagic longline ...... HMS ...... 7/10/2013 California sea lion ...... 1 1 Pelagic longline ...... HMS ...... 7/2/2014 California sea lion ...... 1 1 Pelagic longline ...... HMS ...... 7/8/2015 California sea lion ...... 1 ...... 1 Pelagic longline ...... Thresher Shark ...... 9/20/2015 California sea lion ...... 1 1

Total ...... 1 8 9

In order to use these historical have no specific information to indicate harassment, we conservatively assume interaction records as the basis for the whether any given future interaction that all interactions equate to mortality take estimation process, and because we might result in M/SI versus Level A for these fishing gear interactions. The

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SWFSC has no recorded interactions dolphin. Historically, the CPS survey Dall’s porpoise, Steller sea lion, harbor with any gear other than midwater trawl has only surveyed in water depths >50 seal, and northern elephant seal could and pelagic longline gear, and we do not m and consequently does not sample have risk of capture in midwater trawl anticipate any future interactions in any the nearshore area, potentially under- gear given the demonstrated risk of other gears historically used by SWFSC, sampling any nearshore CPS capture in commercial fishing gear that including the bottom trawl gear aggregations. The aim of planned is similar to the gear used by SWFSC. periodically employed by the SWFSC in collaborative research over the next five In addition, as a result of presumed the AMLR. However, SWFSC has not years is to quantify this potential similarities to Pacific white-sided historically used purse seine gear, and sampling bias by using an industry dolphin or California sea lion or to other we do anticipate that the planned future fishing vessel to extend the sampling species for which there are recorded use of purse seine gear in the CCE could closer to shore. In order to account for interactions in similar commercial present some risk of marine mammal the potential for increased interactions fishing gear, SWFSC determined that interaction. with Pacific white-sided dolphins in there was risk of capture for striped During trawl surveys, SWFSC has nearshore waters, SWFSC added one dolphin, bottlenose dolphin, and harbor recorded interactions with northern fur additional take per year. For the species porpoise despite a lack of relevant LOF seals (California and eastern Pacific most commonly taken, the maximum records. stocks); California sea lions; Pacific number of individuals taken through The LOF review similarly led to our white-sided dolphins; northern right any one interaction was 11 Pacific inference that Kogia spp., bottlenose whale dolphins; and common dolphins white-sided dolphins and 9 California dolphin, common dolphin, striped (long-beaked stock). No northern fur sea lions. Similarly, the annual average dolphin, Risso’s dolphin, and short- seal has been captured since 2008, and of California sea lions taken in longline finned pilot whale could have risk of northern right whale dolphins have gear from 2008–12 was 1. Therefore, the capture in pelagic longline gear given been involved in only one incident, also assumption is that five California sea the demonstrated risk of capture in in 2008. Common dolphins have been lions may be taken in hook and line gear commercial fishing gear that is similar involved in only one incident. over the next five-year period. to the gear used by SWFSC. We note Therefore, California sea lions and In order to evaluate the potential that, due to the expected distribution of Pacific white-sided dolphins are the vulnerability of additional species to longline sampling effort in offshore species most likely to interact with midwater trawl and pelagic longline waters, no take of coastal bottlenose SWFSC trawl gear. For longline gear, gear as part of the take estimation dolphins in longline gear is expected. In only California sea lions have been process for the 2015 rule, we consulted addition, as a result of presumed captured. NMFS’ List of Fisheries (LOF), which similarities to California sea lion or to Take records from 2008 were used as classifies U.S. commercial fisheries into other species for which there are the basis for estimation of potential one of three categories according to the recorded interactions in similar incidental take in support of the 2015 level of incidental marine mammal M/ commercial fishing gear, SWFSC rule, as this year was the worst on SI that is known to occur on an annual determined that there was risk of record and therefore was assumed to basis over the most recent five-year capture for Steller sea lion despite a lack provide a worst-case basis for predicting period (generally) for which data has of relevant LOF records. potential future take. Take interactions been analyzed: Category I, frequent As noted above, the worst-case single from 2008 remain the historical incidental M/SI; Category II, occasional interactions with trawl gear for the two maximum. Therefore, as noted above, incidental M/SI; and Category III, most commonly taken species (Pacific the 2015 analysis is retained here as a remote likelihood of or no known white-sided dolphin and California sea potential worst-case scenario for marine incidental M/SI. lion) involved 11 and 9 individuals, mammal take in SWFSC gear over the 5 Information related to incidental M/SI respectively. For species deemed by years considered in this rulemaking. In in relevant commercial fisheries is not, SWFSC to have a similar risk profile as the 2015 analysis, the annual average however, the sole determinant of these two species, these numbers were over the most recent 5-year period that whether it may be appropriate to taken to represent the potential total included 2008 (rounded up to the next authorize take incidental to SWFSC take over the five-year period. Use of whole number) was used to estimate the survey operations. A number of factors these numbers is sufficient to potential annual take level over the next (e.g., species-specific knowledge appropriately analyze either of two five years. A five-year time frame regarding animal behavior, overall scenarios: (1) More frequent interactions provides enough data to adequately abundance in the geographic region, with a lesser number of individuals; or capture year-to-year variation in take density relative to SWFSC survey effort, (2) a single, worst-case interaction. For levels, reflecting environmental feeding ecology, propensity to travel in trawl gear, species deemed to have a conditions that may change over time. groups commonly associated with other similar risk profile as the Pacific white- In order to incorporate records from the species historically taken) were taken sided dolphin include the Risso’s year 2008, we retain 2008–12 as the 5- into account by the SWFSC to dolphin, bottlenose dolphin, striped year period over which we consider determine whether a species may have dolphin, and common dolphins. (Note interaction records. Those annual a similar vulnerability to certain types that the 11 takes for bottlenose dolphin averages are 7 Pacific white-sided of gear as historically taken species. In in trawl gear are split across stocks dolphins, 4 California sea lions, 2 some cases, we have determined that based on the spatial distribution of northern right whale dolphins, and 1 species without documented M/SI may SWFSC trawl survey effort; 8 takes are northern fur seal, and the prior nevertheless be vulnerable to capture in assumed for the offshore stock and 3 assumption was that this number could SWFSC research gear. Similarly, we takes for the coastal stock.) Species be taken in each of the 5 years (i.e., 35 have determined that some species deemed to have a similar risk profile as Pacific white-sided dolphins, 20 groups with documented M/SI are not the California sea lion include the California sea lions, 10 northern right likely to be vulnerable to capture in Steller sea lion and harbor seal. The whale dolphins, 5 northern fur seals). SWFSC gear. remainder of species determined to be at These take numbers are retained, with This review led to our inference that risk of potential interaction with trawl the exception of the Pacific white-sided common dolphin, Risso’s dolphin, gear are expected to have a relatively

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lower risk profile and, therefore, the purse seine gear and similarly operates We have reviewed subsequent LOFs expected potential take is one per year, in the CCE. NWFSC has not had any and determined that there are no new or five over the five-year period. Note historical interactions with purse seine records that would change the that a common dolphin has gear. Therefore, we followed a similar assumptions regarding potential subsequently been captured in SWFSC approach as described above, in which vulnerability to gear interaction trawl gear. However, we retain the the LOF was consulted and assumptions described above. For a summation of the original approach, which yields a five- regarding species that may be LOF records discussed above for trawl year take estimate of 11 animals, versus vulnerable to interactions with the gear and longline gear, please see Table 13 the approach for historically captured developed. Species with presumed risk (80 FR 8166) and Table 6 (81 FR 38516). species, which would produce a of interaction with purse seine gear, The final 2020 LOF was published on rounded annual average of 1 and, based on LOF records, include common April 16, 2020 (85 FR 21079), and more therefore, a 5-year estimate of 5. dolphins, harbor seal, and California sea information about the LOF is available For hook and line gear, no species is lion. In addition, despite a lack of online at: www.fisheries.noaa.gov/ expected to have a similar risk profile as relevant LOF records, NWFSC deemed national/marine-mammal-protection/ the California sea lion and, therefore, the following species as having risk of marine-mammal-protection-act-list- the expected potential take for all other potential interaction with purse seine fisheries. cetacean species is two over the five- gear: Dall’s porpoise, Pacific white- year period, with the exception of sided dolphin, Risso’s dolphin, northern It is also possible that a captured bottlenose dolphin, for which only one right whale dolphin, Steller sea lion, animal may not be able to be identified take over five years was requested. and harbor porpoise. SWFSC reviewed to species with certainty. Certain Although take due to use of deep-set the assumptions made by NWFSC and pinnipeds and small cetaceans are buoy gear is generally considered has concurred and adopted the same difficult to differentiate at sea, unlikely, SWFSC increased their take assumptions in support of their especially in low-light situations or request for most cetacean species over requested take authorization. SWFSC when a quick release is necessary. For the 2015 request (from 1 to 2 over five additionally reviews records of marine example, a captured delphinid that is years) due to the potential that their use mammal interactions with commercial struggling in the net may escape or be of this gear in cetacean habitat could purse seines in section 6.2.2 of their freed before positive identification is lead to an increased risk of interaction application. For most species, the risk of made. Therefore, the SWFSC requested compared with only their use of typical interaction is expected to be relatively the authorization of incidental take in pelagic longline gear. low and, therefore, SWFSC requested trawl gear for one unidentified pinniped Regarding potential interactions with authorization of one take per potentially and one unidentified small cetacean, purse seine gear, we adopt the analysis affected stock over the five-year period. and additionally one take of that was developed in support of a However, based on the greater number unidentified pinnipeds in both purse similar incidental take rulemaking of recorded interactions with purse seine and longline gear, over the course requested by NMFS’ Northwest seine gear for California sea lions and of the five-year period of the Fisheries Science Center (NWFSC) (83 harbor seals, SWFSC requested 5 takes regulations. Table 6 summarizes the FR 36370; July 27, 2018). Unlike for each species over the five-year total M/SI take authorization due to gear SWFSC, NWFSC has historically used period. interaction in the CCE.

TABLE 6—TOTAL ESTIMATED TAKE DUE TO GEAR INTERACTION IN THE CCE, 2020–25 1

Estimated Estimated Estimated Species 5-year total, 5-year total, 5-year total, Total trawl hook and line purse seine

Kogia spp. 2 ...... 2 ...... 2 Bottlenose dolphin (CA/OR/WA offshore) 3 ...... 8 1 ...... 9 Bottlenose dolphin (CA coastal) 3 ...... 3 ...... 3 Striped dolphin ...... 11 2 1 14 Common dolphin (short-beaked) ...... 11 2 1 14 Common dolphin (long-beaked) ...... 11 2 1 14 Pacific white-sided dolphin ...... 40 ...... 1 41 Northern right whale dolphin ...... 10 ...... 1 11 Risso’s dolphin ...... 11 2 1 14 Short-finned pilot whale ...... 2 ...... 2 Harbor porpoise 4 ...... 5 ...... 1 6 Dall’s porpoise ...... 5 ...... 1 6 Northern fur seal 5 ...... 5 ...... 5 California sea lion ...... 20 5 5 30 Steller sea lion ...... 9 1 ...... 10 Harbor seal 4 ...... 9 ...... 5 14 Northern elephant seal ...... 5 ...... 5 Unidentified pinniped ...... 1 1 1 3 Unidentified cetacean ...... 1 ...... 1 1 Please see preceding text for derivation of take estimates. 2 We expect that Kogia spp. taken over the five-year timespan could be either a pygmy or dwarf sperm whale. 3 As a species believed to have similar propensity for capture in trawl gear as that demonstrated by the Pacific white-sided dolphin, we assume that eleven bottlenose dolphins could be captured over the five-year timespan. Total potential take of bottlenose dolphins in trawl gear has been apportioned by stock according to typical occurrence of that stock relative to SWFSC survey locations. We assume that the requested take of a bottlenose dolphin in longline gear would be from the offshore stock due to the typical location of SWFSC longline sampling. 4 Incidental take may be of animals from any stock, excluding Washington inland waters stocks. 5 Incidental take may be of animals from either the eastern Pacific or California stocks.

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Whales—For large whales (baleen disturbance. Estimating the number of simultaneously used sources. These whales and sperm whales), beaked exposures at the specified received level sources were effectively those used whales, and killer whales, observed M/ requires several determinations: directly in acoustic propagation SI is extremely rare for trawl gear and, (1) A detailed characterization of the modeling to estimate the zones within for most of these species, only slightly acoustic characteristics of the effective which the 160 dB rms received level more common in longline gear. sound source or sources in operation; would occur. Although whale species could become (2) The operational areas exposed to Many of these sources can be operated captured or entangled in SWFSC gear, levels at or above those associated with in different modes and with different the probability of interaction is Level B harassment when these sources output parameters. In modeling their extremely low considering the lower are in operation; potential impact areas, those features level of effort relative to that of (3) A method for quantifying the among those given in Table 2 of the commercial fisheries. We believe it resulting sound fields around these notice of proposed rulemaking (e.g., extremely unlikely that any large whale, sources; and lowest operating frequency) that would beaked whale, or killer whale would be (4) An estimate of the average density lead to the most precautionary estimate captured or entangled in SWFSC for marine mammal species in each area of maximum received level ranges (i.e., research gear. of operation. largest ensonified area) were used. The We provide a summary of the effective beam patterns took into Estimated Take Due to Acoustic analytical approach here, but invite the account the normal modes in which Harassment reader interested in additional detail to these sources are typically operated. As described previously, we believe it review the detailed description While these signals are brief and unlikely that SWFSC use of active provided in support of the 2015 rule (80 intermittent, a conservative assumption acoustic sources is realistically likely to FR 8166) as well as the detailed was taken in ignoring the temporal cause Level B harassment of marine description provided in section 6.4.2 of pattern of transmitted pulses in mammals. However, per SWFSC SWFSC’s application. calculating potential Level B harassment request, we conservatively assume that, Quantifying the spatial and temporal events. Operating characteristics of each at worst, Level B harassment may result dimension of the sound exposure of the predominant sound sources were from exposure to noise from these footprint (or ‘‘swath width’’) of the used in the calculation of effective line- sources, and we carry forward the active acoustic devices in operation on kilometers and area of exposure for each analytical approach developed in moving vessels and their relationship to source in each survey. support of the 2015 rule. At that time, the average density of marine mammals Three predominant sources were in order to quantify the potential for enables a quantitative estimate of the identified as having the largest potential Level B harassment to occur, NMFS number of events in which sound levels impact zones during operations, based developed an analytical framework exceed the relevant threshold. The on their relatively lower output considering characteristics of the active number of potentially harassing frequency, higher output power, and acoustic systems, their expected exposures is ultimately estimated as the their operational pattern of use. These patterns of use, and characteristics of product of the volume of water sources are the SX90, EK60/EK80, and the marine mammal species that may ensonified at 160 dB rms or higher (to ME70. Estimated effective cross- interact with them. The framework a maximum depth of 500 m) and the sectional areas of exposure were incorporated a number of deliberately volumetric density of animals estimated for each of these sources. In precautionary, simplifying assumptions, determined from simple assumptions determining the effective line- and the resulting exposure estimates, about their vertical stratification in the kilometers for each of these which are presumed here to equate to water column. Specifically, reasonable predominant sources, the operational take by Level B harassment (as defined assumptions based on what is known patterns of use relative to one another by the MMPA), may be seen as an about diving behavior across different were further applied to determine overestimate of the potential for such marine mammal species were made to which source was the predominant one effects to occur as a result of the segregate those that predominately operating at any point in time for each operation of these systems. remain in the upper 200 m of the water survey. When multiple sound sources Regarding the potential for Level A column versus those that regularly dive are used simultaneously, the one with harassment in the form of permanent deeper during foraging and transit. the largest potential impact zone in each threshold shift to occur, the very short Because depths range dramatically relevant depth strata is considered for duration sounds emitted by these along the margin of the continental use in estimating exposures. sources reduces the likely level of slope that define the outer edge of the The cross-sectional area of water accumulated energy an animal is survey areas, but deeper surveyed ensonified at or above the 160 dB rms exposed to. An individual would have depths rarely range over 500 m in threshold was calculated using a simple to remain exceptionally close to a sound practice, the depth range for model of sound propagation loss, which source for unrealistic lengths of time, determining volumes was set at 500 m accounts for the loss of sound energy suggesting the likelihood of injury for deep diving species. over increasing range. We used a occurring is exceedingly small. Potential An initial characterization of the spherical spreading model (where Level A harassment is therefore not general source parameters for the propagation loss = 20 * log [range]; such considered further in this analysis. primary active acoustic sources that there would be a 6-dB reduction in The assessment paradigm for active operated by the SWFSC was conducted, sound level for each doubling of acoustic sources used in SWFSC enabling a full assessment of all sound distance from the source), a reasonable fisheries research is relatively sources used by the SWFSC (see Table approximation over the relatively short straightforward and has a number of key 2 of the notice of proposed rulemaking). ranges involved. Spherical spreading is simplifying assumptions. Sound This auditing of the active acoustic a reasonable assumption even in produced by these sources is sources also enabled a determination of relatively shallow waters since, taking intermittent and, therefore, evaluated the predominant sources that, when into account the beam angle, the against the 160 dB rms criterion for operated, would have sound footprints reflected energy from the seafloor will Level B harassment by behavioral exceeding those from any other be much weaker than the direct source

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and the volume influenced by the predominant source in the shallow sounds at the extent of a depth reflected acoustic energy would be stratum and the (sometimes different) boundary; and (4) determination of a much smaller over the relatively short source predominating in the deep biologically-relevant volumetric density ranges involved. We also accounted for stratum. This creates an effective total of marine mammal species in each area. the frequency-dependent absorption volume characterizing the area Estimates of Level B harassment by coefficient and beam pattern of these ensonified when each predominant acoustic sources are the product of the sound sources, which is generally source is operated and accounts for the volume of water ensonified at 160 dB highly directional. The lowest frequency fact that deeper-diving species may rms or higher for the predominant was used for systems that are operated encounter a complex sound field in sound source for each relevant survey over a range of frequencies. The vertical different portions of the water column. and the volumetric density of animals extent of this area is calculated for two The best available information for each species. Please see Tables 6–12 depth strata. These results were applied regarding marine mammal occurrence in and 6–13 in SWFSC’s application for differentially based on the typical the CCE was used to develop volumetric relevant information. Take estimates are vertical stratification of marine density values for use in calculating summarized in Table 9 below. mammals. estimated exposures. This information was determined through review of Estimated Take Due to Physical Following the determination of available information, as indicated Disturbance effective sound exposure area for through NOAA’s CetMap catalogue, transmissions considered in two available online at: cetsound.noaa.gov/ Estimated take due to physical dimensions, the next step was to cda-index. More detail, and the density disturbance could potentially happen in determine the effective volume of water values used, are provided in section 3 the AMLR only as a result of the ensonified at or above 160 dB rms for and Appendix A of the SWFSC unintentional approach of SWFSC the entirety of each survey. For each of application. For marine mammals vessels to pinnipeds hauled out on ice, the three predominant sound sources, occurring in the AMLR, no new and would result in no greater than the volume of water ensonified is information is available, and the density Level B harassment. During Antarctic estimated as the athwartship cross- values used in the 2015 rule are carried ecosystem surveys conducted in the sectional area (in square kilometers) of forward. austral winter (i.e., June 1 through sound at or above 160 dB rms Estimates of potential incidents of August 31), it is expected that shipboard multiplied by the total distance traveled Level B harassment (i.e., potential activities may result in behavioral by the ship. Where different sources exposure to levels of sound at or disturbance of some pinnipeds. It is operating simultaneously would be exceeding the 160 dB rms threshold) are likely that some pinnipeds on ice will predominant in each different depth then calculated by using (1) the move or flush from the haul-out into the strata, the resulting cross-sectional area combined results from output water in response to the presence or calculated took this into account. characteristics of each source and sound of SWFSC survey vessels. Specifically, for shallow-diving species identification of the predominant Behavioral responses may be considered this cross-sectional area was determined sources in terms of acoustic output; (2) according to the scale shown in Table 7 for whichever was predominant in the their relative annual usage patterns for and based on the method developed by shallow stratum, whereas for deeper- each operational area; (3) a source- Mortenson (1996). We consider diving species this area was calculated specific determination made of the area responses corresponding to Levels 2–3 from the combined effects of the of water associated with received to constitute Level B harassment.

TABLE 7—PINNIPED RESPONSE TO DISTURBANCE

Type of Level response Definition

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

The SWFSC has estimated potential research vessel—that is, some animals consistent with the regional marine incidents of Level B harassment due to assumed to react in this calculation will mammal viewing guidelines that NMFS physical disturbance (Table 8) using the not react, and others assumed not to has established for Alaska, which vessel distance traveled (20,846 km) react because they are outside the restrict approaches to marine mammals during a typical AMLR survey, an effective strip width may in fact react— to a distance of 100 m or greater in order effective strip width of 200 m (animals we believe that this approach is a to reduce the potential to cause are assumed to react if they are less than reasonable effort towards accounting for inadvertent harm. Alaska is believed to 100 m from the vessel; see below), and this potential source of disturbance and have the most similar environment to the estimated population density for have no information to indicate that the the Antarctic of all regions for which each species (see Table 6–2 of SWFSC’s approach is biased either negatively or NMFS has established viewing application). Although there is likely to positively. SWFSC used an effective guidelines. Each estimate is the product be variation between individuals and strip width of 200 m (i.e., 100 m on of the species-specific density, annual species in reactions to a passing either side of a passing vessel) to be

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line-kilometers, and the effective strip- width.

TABLE 8—ESTIMATED LEVEL B HARASSMENT OF PINNIPEDS ASSOCIATED WITH AMLR VESSEL TRANSECTS

Estimated annual 5-Year Species Level B total harassment

Antarctic fur seal ...... 417 2,085 Southern elephant seal ...... 1 1 5 Weddell seal ...... 225 1,125 Crabeater seal ...... 2,704 13,520 Leopard seal ...... 68 340 1 Based on the recommendation of the Marine Mammal Commission (see Comments and Responses), this has been increased to 5.

Mitigation The following suite of mitigation the SWFSC has determined to be measures and procedures, i.e., measures feasible and has implemented for years Under Section 101(a)(5)(A) of the taken to monitor, avoid, or minimize the as a standard part of sampling protocols. MMPA, NMFS must set forth the encounter and potential take of marine These measures include the move-on permissible methods of taking pursuant mammals, will be employed by the rule mitigation protocol (also referred to to such activity, and other means of SWFSC during research cruises and in the preamble as the move-on rule), effecting the least practicable adverse activities. For a summary of measures protected species visual watches, and impact on such species or stock and its proposed by SWFSC, please see Table use of acoustic pingers and a marine habitat, paying particular attention to 11–1 of the application. These mammal exclusion device (MMED) on rookeries, mating grounds, and areas of procedures are the same whether the surface trawls using the Nordic 264 similar significance, and on the survey is conducted by SWFSC or is a trawl net. availability of such species or stock for SWFSC-supported survey, which may Effective monitoring is a key step in taking for certain subsistence uses be conducted onboard a variety of implementing mitigation measures and (‘‘least practicable adverse impact’’). vessels, e.g., on board a NOAA vessel or is achieved through regular marine NMFS does not have a regulatory charter vessel. The procedures mammal watches. Marine mammal definition for ‘‘least practicable adverse described are based on protocols used watches are a standard part of impact.’’ However, NMFS’ during previous research surveys and/or conducting SWFSC fisheries research implementing regulations require best practices developed for commercial activities, particularly those activities applicants for incidental take fisheries using similar gear. The SWFSC that use gears that are known to or authorizations to include information conducts a large variety of research potentially interact with marine about the availability and feasibility operations, but only activities using mammals. Marine mammal watches and (economic and technological) of trawl, hook and line, and purse seine monitoring occur during daylight hours equipment, methods, and manner of gears are expected to present a prior to deployment of gear (e.g., trawls, conducting such activity or other means reasonable likelihood of resulting in purse seine, and longline gear), and they of effecting the least practicable adverse incidental take of marine mammals. continue through active fishing and impact upon the affected species or SWFSC’s past survey operations have during retrieval of gear. If marine stocks and their habitat (50 CFR resulted in marine mammal mammals are sighted in the area and are 216.104(a)(11)). interactions. These protocols are considered to be at risk of interaction In evaluating how mitigation may or designed to minimize to the extent with the research gear, then the may not be appropriate to ensure the practicable the interactions that do sampling station is either moved or least practicable adverse impact on happen while providing credible, canceled or the activity is suspended species or stocks and their habitat, we documented, and safe encounters with until the marine mammals are no longer carefully consider two primary factors: observed or captured animals. in the area. On smaller vessels, the CS (1) The manner in which, and the Mitigation procedures will be focused and the vessel operator are typically degree to which, implementation of the on those situations where mammals, in those looking for marine mammals and measure(s) is expected to reduce the best professional judgement of the other protected species. When marine impacts to marine mammal species or vessel operator and Chief Scientist (CS), mammal researchers are on board stocks, their habitat, and their pose a risk of incidental take. In many (distinct from marine mammal observers availability for subsistence uses. This instances, the SWFSC will use dedicated to monitoring for potential analysis will consider such things as the streamlined protocols and training for gear interactions), they will record the nature of the potential adverse impact protected species developed in support estimated species and numbers of (such as likelihood, scope, and range), of the 2015 rule and refined during animals present and their behavior. If the likelihood that the measure will be implementation of the rule. marine mammal researchers are not on effective if implemented, and the The SWFSC has invested significant board or available, then the CS in likelihood of successful time and effort in identifying cooperation with the vessel operator implementation. technologies, practices, and equipment will monitor for marine mammals and (2) The practicability of the measure to minimize the impact of the proposed provide training as practical to bridge for applicant implementation. activities on marine mammal species crew and other crew to observe and Practicability of implementation may and stocks and their habitat. These record such information. Because consider such things as cost, impact on efforts have resulted in the marine mammals are frequently operations, personnel safety, and consideration of many potential observed in CCE waters, marine practicality of implementation. mitigation measures, including those mammal observations may be limited to

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those animals that directly interact with appropriate) and scientific party in gear and returned to the water as soon or are near to the vessel or gear. NOAA order to explain responsibilities, as possible with no gear or as little gear vessels, chartered vessels, and affiliated communication procedures, marine remaining on the animal as possible. vessels or studies are required to mammal monitoring protocol, and Animals are released without removing monitor interactions with marine operational procedures. The CS will be them from the water if possible and data mammals but are limited to reporting responsible for coordination with the collection is conducted in such a direct interactions, dead animals, or Officer on Deck (OOD; or equivalent on manner as not to delay release of the entangled whales. non-NOAA platforms) to ensure that animal(s) or endanger the crew. SWFSC requirements, procedures, and decision- staff are instructed on how to identify General Measures making processes are understood and different species; handle and bring Coordination and Communication— properly implemented. marine mammals aboard a vessel; assess When SWFSC survey effort is Vessel Speed—Vessel speed during the level of consciousness; remove conducted aboard NOAA-owned active sampling rarely exceeds 5 kn, fishing gear; and return marine vessels, there are both vessel officers with typical speeds being 2–4 kn. mammals to water. For further and crew and a scientific party. Vessel Transit speeds vary from 6–14 kn but information regarding proposed officers and crew are not composed of average 10 kn. These low vessel speeds handling procedures, please see section SWFSC staff but are employees of minimize the potential for ship strike. 11.5 of SWFSC’s application. NOAA’s Office of Marine and Aviation At any time during a survey or in Operations (OMAO), which is transit, if a crew member or designated Trawl Survey Visual Monitoring and responsible for the management and marine mammal observer standing Operational Protocols operation of NOAA fleet ships and watch sights marine mammals that may Visual monitoring protocols, aircraft and is composed of uniformed intersect with the vessel course that described above, are an integral officers of the NOAA Commissioned individual will immediately component of trawl mitigation Corps as well as civilians. The ship’s communicate the presence of marine protocols. Observation of marine officers and crew provide mission mammals to the bridge for appropriate mammal presence and behaviors in the support and assistance to embarked course alteration or speed reduction, as vicinity of SWFSC trawl survey scientists, and the vessel’s Commanding possible, to avoid incidental collisions. operations allows for the application of Officer (CO) has ultimate responsibility Other Gears—The SWFSC deploys a professional judgment in determining for vessel and passenger safety and, wide variety of gear to sample the the appropriate course of action to therefore, decision authority. When marine environment during all of their minimize the incidence of marine SWFSC survey effort is conducted research cruises. Many of these types of mammal gear interactions. aboard cooperative platforms (i.e., non- gear (e.g., plankton nets, video camera The OOD, CS or other designated NOAA vessels), ultimate responsibility and ROV deployments) are not member of the scientific party, and crew and decision authority again rests with considered to pose any risk to marine standing watch on the bridge visually non-SWFSC personnel (i.e., vessel’s mammals and are therefore not subject scan surrounding waters with the naked master or captain). Decision authority to specific mitigation measures. eye and rangefinding binoculars (or includes the implementation of However, at all times when the SWFSC monocular) for marine mammals prior mitigation measures (e.g., whether to is conducting survey operations at sea, to, during, and until all trawl operations stop deployment of trawl gear upon the OOD and/or CS and crew will are completed. Some sets may be made observation of marine mammals). The monitor for any unusual circumstances at night or other limited visibility scientific party involved in any SWFSC that may arise at a sampling site and use conditions, when visual observation survey effort is composed, in part or best professional judgment to avoid any may be conducted using the naked eye whole, of SWFSC staff and is led by a potential risks to marine mammals and available vessel lighting with CS. Therefore, because the SWFSC—not during use of all research equipment. limited effectiveness. OMAO or any other entity that may Handling Procedures—Handling Marine mammal watches will be have authority over survey platforms procedures are those taken to return a initiated 15 minutes prior to arrival on used by SWFSC—is the applicant to live animal to the sea or process a dead station (or for the amount of time to whom any incidental take authorization animal. The SWFSC will continue to travel between stations if less than 15 issued under the authority of these implement handling protocols minutes) to determine if marine regulations will be issued, we require developed in support of the 2015 rule mammals are near the planned trawl set that the SWFSC take all necessary and refined during implementation of location. Either dedicated observers, the measures to coordinate and the rule, to minimize potential harm to OOD, CS, and/or crew standing watch communicate in advance of each marine mammals that are incidentally will visually scan for marine mammals specific survey with OMAO, or other taken during the course of fisheries during all daytime operations. Marine relevant parties, to ensure that all research activities. These procedures are mammal watches will be conducted mitigation measures and monitoring expected to increase post-release using any binocular or monocular requirements described herein, as well survival and, in general, following a sighting instrument, with a means to as the specific manner of ‘‘common sense’’ approach to handling estimate distance to infringing protected implementation and relevant event- captured or entangled marine mammals species during daytime, and the best contingent decision-making processes, will present the best chance of available means of observation during are clearly understood and agreed-upon. minimizing injury to the animal and of nighttime observations. This typically This may involve description of all decreasing risks to scientists and vessel occurs during transit leading up to required measures when submitting crew. Handling or disentangling marine arrival at the sampling station because cruise instructions to OMAO or when mammals carries inherent safety risks, of standard protocol of immediate completing contracts with external and using best professional judgment deployment of trawl gear upon arriving entities. SWFSC will coordinate and and ensuring human safety is at station (intended to reduce the risk of conduct briefings at the outset of each paramount. attracting curious marine mammals). survey and as necessary between ship’s Captured live or injured marine However, in some cases it may be crew (CO/master or designee(s), as mammals are released from research necessary to conduct a plankton tow

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prior to deploying trawl gear. In these conduct plankton tows prior to have not been sighted within 1 nmi of cases, the visual watch will continue deploying trawl gear in order to avoid the planned set location. This decision until trawl gear is ready to be deployed. trawling through extremely high is at the discretion of the officer on Lookouts immediately alert the OOD densities of jellies and similar taxa that watch and is dependent on the and CS as to their best estimate of the are numerous enough to severely situation. species and number of animals observed damage trawl gear. Care will be taken when emptying the and any observed animal’s distance, Once the trawl net is in the water, the trawl to avoid damage to any marine bearing, and direction of travel relative OOD, CS, and/or crew standing watch mammals that may be caught in the gear to the ship’s position. If any marine will continue to monitor the waters but are not visible upon retrieval. The mammals are sighted around the vessel around the vessel and maintain a gear will be emptied as quickly as before setting gear, the vessel may be lookout for marine mammal presence as possible after retrieval in order to moved away from the animals to a far away as environmental conditions determine whether or not marine different section of the sampling area if allow. If marine mammals are sighted mammals, or any other protected the animals appear to be at risk of before the gear is fully retrieved, the species, are present. interaction with the gear. This is what most appropriate response to avoid Standard survey protocols that are is referred to as the ‘‘move-on’’ rule. incidental take will be determined by expected to lessen the likelihood of If marine mammals are sighted within the professional judgment of the CS, marine mammal interactions include 1 nmi of the planned set location in the watch leader, OOD and other standardized tow durations and 15 minutes before setting the gear, the experienced crew as necessary. This distances. Standard tow durations of not vessel will transit to a different section judgment will be based on their past more than 45 minutes at the target depth of the sampling area to maintain a experience operating gears around have been implemented, excluding minimum set distance of 1 nmi. An marine mammals and SWFSC training deployment and retrieval time (which exception to this protocol is for baleen sessions that facilitate dissemination of may require an additional 30 minutes whales; baleen whales are commonly expertise operating in these situations depending on depth), to reduce the observed within the 1 nmi distance from (e.g., factors that contribute to marine likelihood of attracting and incidentally SWFSC trawl sampling locations but mammal gear interactions and those that taking marine mammals and other have never been observed to be attracted aid in successfully avoiding these protected species. These short tow to SWFSC research activity and have events). These judgments take into durations decrease the opportunity for never interacted with SWFSC research consideration the species, numbers, and curious marine mammals to find the gear. Decision regarding the potential behavior of the animals, the status of the vessel and investigate. Trawl tow need to move-on in response to baleen trawl net operation (net opening, depth, distances are less than 3 nmi, which whale presence will be made on the and distance from the stern), the time it should reduce the likelihood of basis of professional judgment based on would take to retrieve the net, and attracting and incidentally taking the specific circumstances. If after safety considerations for changing speed marine mammals. Typical tow distances moving on, protected species remain or course. are 1–2 nmi, depending on the survey within the 1 nmi exclusion zone, the CS The appropriate course of action to and trawl speed. In addition, the or watch leader may decide to move minimize the risk of incidental take is vessel’s crew will clean trawl nets prior again or to skip the station. However, determined by the professional to deployment to remove prey items that SWFSC acknowledges that the judgment of the OOD, vessel operator, might attract marine mammals. Catch effectiveness of visual monitoring may and the CS based on all situation volumes are typically small, with every be limited depending on weather and variables, even if the choices attempt made to collect all organisms lighting conditions, and it may not compromise the value of the data caught in the trawl. always be possible to conduct visual collected at the station. We recognize Marine Mammal Excluder Devices— observations out to 1 nmi. The CS or that it is not possible to dictate in The NETS Nordic 264 trawl gear will be watch leader will determine the best advance the exact course of action that fitted with MMEDs to allow marine strategy to avoid potential takes of the OOD or CS should take in any given mammals caught during trawling marine mammals based on the species event involving the presence of marine operations an opportunity to escape. encountered, their numbers and mammals in proximity to an ongoing These devices enable target species to behavior, position and vector relative to trawl tow, given the sheer number of pass through a grid or mesh barrier and the vessel, and other factors. For potential variables, combinations of into the codend while preventing the instance, a marine mammal transiting variables that may determine the passage of marine mammals, which are through the area off in the distance appropriate course of action, and the ejected out through an escape opening might only require a short move from need to prioritize human safety in the or swim back out of the mouth of the the designated station while a pod of operation of fishing gear at sea. net. Potential for interactions with dolphins gathered around the vessel Nevertheless, we require a full protected species, such as marine may require a longer move from the accounting of factors that shape both mammals, is often greatest during the station or possibly cancellation if they successful and unsuccessful decisions, deployment and retrieval of the trawl, follow the vessel. In any case, no gear and these details will be fed back into when the net is at or near the surface of will be deployed if marine mammals SWFSC training efforts and ultimately the water. During retrieval of the net, other than baleen whales have been help to refine the best professional protected species may become sighted within 1 nmi of the planned set judgment that determines the course of entangled in the net while attempting to location during the 15-minute watch action taken in any given scenario (see feed from the codend as it floats near period. further discussion in Monitoring and the surface of the water. Considerable In many cases, trawl operations will Reporting). effort has been given to developing be the first activity undertaken upon If trawling operations have been MMEDs that allow marine mammals to arrival at a new station, in order to suspended because of the presence of escape from the net while allowing reduce the opportunity to attract marine marine mammals, the vessel will retention of the target species (e.g., mammals to the vessel. However, in resume trawl operations (when Dotson et al., 2010). MMEDs generally some cases it will be necessary to practicable) only when the mammals consist of a large aluminum grate

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positioned in the intermediate portion the taking is necessary for the protection location; when groups of more than 5 of the net forward of the codend and or welfare of the mammal, the sea lions are sighted within 1 nmi of the below an ‘‘escape panel’’ constructed protection of the public health and sampling station, deployment of gear into the upper net panel above the grate welfare, or the non-lethal removal of would be suspended. This exception (Figure A–1 of SWFSC’s application). nuisance animals. SWFSC use of has been defined considering the rarity The angled aluminum grate is intended pingers as a deterrent device, which of past interactions between this gear to guide marine mammals through the may cause Level B harassment of marine and California sea lions and in order to escape panel and prevent them from mammals, is intended solely for the make this mitigation measure being caught in the codend (Dotson et avoidance of potential marine mammal practicable to implement. Without it, al., 2010). MMEDs are currently interactions with SWFSC research gear given the density of California sea lions deployed on all surveys using Nordic (i.e., avoidance of Level A harassment, in the areas where longline surveys are 264 nets. serious injury, or mortality). Therefore, conducted, the SWFSC believes Acoustic Deterrent Devices—Pingers use of such deterrent devices, and the implementing the move-on rule for a will be deployed during all trawl taking that may result, is for the single animal would preclude sampling operations and on all types of trawl protection and welfare of the mammal in some areas and introduce significant nets. Two to four pingers will be placed and is covered explicitly under MMPA bias into survey results. Groups of five along the footrope and/or headrope to section 109(h)(1)(A). Potential taking of California sea lions or greater is believed discourage marine mammal marine mammals resulting from SWFSC to represent a trigger for the move-on interactions. use of pingers is not discussed further rule that would allow sampling in areas Acoustic pingers are underwater in this document. where target species can be caught sound emitting devices that are without increasing the number of Longline Survey Visual Monitoring and designed to decrease the probability of interactions between marine mammals Operational Protocols entanglement or unintended capture of and research longline gear. This marine mammals (see Appendix B of Visual monitoring requirements for all measure was implemented under the the SWFSC application). Acoustic longline surveys are similar to the 2015 rule, and no increase in sea lion pingers have been shown to effectively general protocols described above for take was observed, nor were multiple deter several species of small cetaceans trawl surveys. Please see that section for sea lions captured during any set. from becoming entangled in gillnets and full details of the visual monitoring SWFSC is required to report occasions driftnets (for detailed discussion, please protocol and the move-on rule when the move-on rule is waived based see 80 FR 8166). mitigation protocol. In summary, on this exception. The CPS Survey uses the Netguard 70 requirements for longline surveys are to: As for trawl surveys, some standard kHz dolphin pinger manufactured by (1) Conduct visual monitoring prior to survey protocols are expected to Future Oceans and the Rockfish arrival on station; (2) implement the minimize the potential for marine Recruitment and Ecosystem Assessment move-on rule if marine mammals are mammal interactions. SWFSC longline Surveys use the DDD–03H pinger observed within the area around the sets are conducted with drifting pelagic manufactured by STM Products. Pingers vessel and may be at risk of interacting or anchored gear marked at both ends remain operational at depths between with the vessel or gear; (3) deploy gear with buoys. Typical soak times are 2–4 10 m and 200 m. Tones range from 100 as soon as possible upon arrival on hours, but may be as long as 8 hours microseconds to seconds in duration, station (depending on presence of when targeting swordfish (measured with variable frequency of 5–500 kHz marine mammals); and (4) maintain from the time the last hook is in the and maximum sound pressure level of visual monitoring effort throughout water to when the first hook is brought 176 dB rms re 1 mPa at 1 m at 30–80 deployment and retrieval of the longline out of the water). kHz. gear. As was described for trawl gear, SWFSC longline protocols specifically If one assumes that use of a pinger is the OOD, CS, or watch leader will use prohibit chumming (releasing additional effective in deterring marine mammals best professional judgment to minimize bait to attract target species to the gear). from interacting with fishing gear, one the risk to marine mammals from However, spent bait may be discarded must therefore assume that receipt of potential gear interactions during during gear retrieval while gear is still the acoustic signal has a disturbance deployment and retrieval of gear. If in the water. In the experience of effect on those marine mammals (i.e., marine mammals are detected during SWFSC, this practice increases survey potential Level B harassment). However, setting operations and are considered to efficiency and has not resulted in Level B harassment that may be be at risk, immediate retrieval or interactions with marine mammals. incurred as a result of SWFSC use of suspension of operations may be Scientist observations indicate pingers does not constitute take that warranted. If operations have been pinnipeds do not gather immediately aft must be authorized under the MMPA. suspended because of the presence of of the survey vessel as a result of The MMPA prohibits the taking of marine mammals, the vessel will discarding spent bait. However, if marine mammals by U.S. citizens or resume setting (when practicable) only protected species interactions with within the U.S. EEZ unless such taking when the animals are believed to have longline gear increase, or if SWFSC staff is appropriately permitted or departed the area. If marine mammals observe that this practice is contributing authorized. However, the MMPA are detected during retrieval operations to protected species interactions, the provides several narrowly defined and are considered to be at risk, haul- SWFSC will revisit this practice and exemptions from this requirement (e.g., back may be postponed. These decisions consider the need to retain spent bait for Alaskan natives; for defense of self are at the discretion of the OOD/CS and until no gear remains in the water. or others; for Good Samaritans (16 are dependent on the situation. U.S.C. 1371(b)–(d))). Section 109(h) of An exception is when California sea Purse Seine Survey Visual Monitoring the MMPA (16 U.S.C. 1379(h)) allows lions are sighted during the watch and Operational Protocols for the taking of marine mammals in a period prior to setting longline gear. For Visual monitoring and operational humane manner by Federal, state, or this species only, longline gear may be protocols for purse seine surveys are local government officials or employees set if a group of 5 or fewer animals is similar to those described previously for in the course of their official duties if sighted within 1 nmi of the planned set trawl surveys, with a focus on visual

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observation in the survey area and implementing regulations further Visual Monitoring avoidance of marine mammals that may describe the information that an Marine mammal watches are a be at risk of interaction with survey applicant should provide when standard part of conducting fisheries vessels or gear. The crew will keep requesting an authorization (50 CFR research activities, and are implemented watch for marine mammals before and 216.104(a)(13)), including the means of as described previously in Mitigation. during a set. If a bird or marine mammal accomplishing the necessary monitoring Dedicated marine mammal visual observer is on board, the observer(s) and reporting that will result in monitoring occurs as described (1) for inform the CS and captain of any marine increased knowledge of the species and some period prior to deployment of mammals detected at or near a sampling the level of taking or impacts on most research gear; (2) throughout station. Observations focus on populations of marine mammals. deployment and active fishing of all avoidance of cetaceans (e.g., dolphins, Monitoring and reporting research gears; (3) for some period prior and porpoises) and aggregations of requirements prescribed by NMFS to retrieval of longline gear; and (4) pinnipeds. should contribute to improved throughout retrieval of all research gear. If any killer whales, dolphins, or understanding of one or more of the porpoises are observed within This visual monitoring is performed by following: trained SWFSC personnel or other approximately 500 m of the purse seine • Occurrence of significant survey location, the set will be delayed. trained crew during the monitoring interactions with marine mammal period. Observers record the species and If any dolphins or porpoises are species in action area (e.g., animals that observed in the net, the net will be estimated number of animals present came close to the vessel, contacted the and their behaviors, which may be immediately opened to let the animals gear, or are otherwise rare or displaying go. Pinnipeds may be attracted to fish valuable information towards an unusual behavior); understanding of whether certain caught in purse seine gear but are • Nature, scope, or context of likely known to jump in and out of the net species may be attracted to vessels or marine mammal exposure to potential certain survey gears. Separately, marine without entanglement. If pinnipeds are stressors/impacts (individual or in the immediate area where the net is mammal watches are conducted by cumulative, acute or chronic), through watch-standers (those navigating the to be set, the set is delayed until the better understanding of: (1) Action or animals move out of the area or the vessel and other crew; these will environment (e.g., source typically not be SWFSC personnel) at all station is abandoned. However, if fewer characterization, propagation, ambient than five pinnipeds are seen in the times when the vessel is being operated. noise); (2) affected species (e.g., life The primary focus for this type of watch vicinity but do not appear to be in the history, dive patterns); (3) co-occurrence direct way of the setting operation, the is to avoid striking marine mammals of marine mammal species with the net may be set. SWFSC is required to and to generally avoid navigational action; or (4) biological or behavioral report occasions when the move-on rule hazards. These watch-standers typically context of exposure (e.g., age, calving or is waived based on this exception. have other duties associated with feeding areas); navigation and other vessel operations SWFSC also uses unmanned aerial • systems (UAS) to conduct research. For Individual marine mammal and are not required to record or report pinnipeds, UAS flights will be at 100– responses (behavioral or physiological) to the scientific party data on marine 200 ft depending on species (i.e., 100 ft to acoustic stressors (acute, chronic, or mammal sightings, except when gear is for elephant seals and 200 ft for other cumulative), other stressors, or being deployed or retrieved. species); in mixed aggregations, the cumulative impacts from multiple SWFSC will also monitor disturbance stressors; of hauled-out pinnipeds resulting from most conservative altitude is used. • UASs will not be flown directly over How anticipated responses to the presence of researchers in the pinniped haulouts. stressors impact either: (1) Long-term Antarctic, paying particular attention to We have carefully evaluated the fitness and survival of individual the distance at which different species SWFSC’s planned mitigation measures marine mammals; or (2) populations, of pinniped are disturbed. Disturbance and considered a range of other species, or stocks; will be recorded according to the three- • measures in the context of ensuring that Effects on marine mammal habitat point scale, representing increasing seal we prescribed the means of effecting the (e.g., marine mammal prey species, response to disturbance, shown in Table least practicable adverse impact on the acoustic habitat, or important physical 7. components of marine mammal habitat); affected marine mammal species and Training stocks and their habitat. Based on our and evaluation of these measures, we have • Mitigation and monitoring SWFSC anticipates that additional determined that these mitigation effectiveness. information on practices to avoid measures provide the means of effecting SWFSC plans to continue its marine mammal interactions can be the least practicable adverse impact on systematic training, operations, data gleaned from training sessions and the marine mammal species or stocks and collection, animal handling and continuation of systematic data their habitat, paying particular attention sampling protocols, etc., as refined collection standards. The SWFSC will to rookeries, mating grounds, and areas through implementation of the 2015 conduct annual trainings for all chief of similar significance, and on the rule, in order to improve its ability to scientists and other personnel who may availability of such species or stock for understand how mitigation measures be responsible for conducting marine subsistence uses. influence interaction rates and ensure mammal visual observations or its research operations are conducted in handling incidentally captured marine Monitoring and Reporting an informed manner and consistent mammals to explain mitigation In order to issue an LOA for an with lessons learned from those with measures and monitoring and reporting activity, Section 101(a)(5)(A) of the experience operating these gears in requirements, mitigation and MMPA states that NMFS must set forth close proximity to marine mammals. It monitoring protocols, marine mammal requirements pertaining to the is in this spirit that we plan to continue identification, recording of count and monitoring and reporting of the the monitoring requirements described disturbance observations, completion of authorized taking. NMFS’s MMPA below. datasheets, and use of equipment. Some

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of these topics may be familiar to to reduce duplication of effort among The SWFSC will submit annual SWFSC staff, who may be professional the Centers. summary reports to OPR including: (1) biologists; the SWFSC shall determine Annual line-kilometers surveyed during Handling Procedures and Data the agenda for these trainings and which the predominant acoustic Collection ensure that all relevant staff have systems were used (see ‘‘Estimated Take necessary familiarity with these topics. Improved standardization of handling by Acoustic Harassment’’ for further Training typically includes three procedures were discussed previously discussion), specific to each region; (2) primary elements: (1) An overview of in Mitigation. In addition to the benefits summary information regarding use of the purpose and need for the implementing these protocols are all hook and line, purse seine, and trawl authorization, including mandatory believed to have on the animals through gear, including number of sets, tows, mitigation measures by gear and the increased post-release survival, SWFSC etc., specific to each research area and purpose for each, and species that believes adopting these protocols for gear; (3) accounts of all incidents of SWFSC is authorized to incidentally data collection will also increase the marine mammal interactions, including take; (2) detailed descriptions of information on which ‘‘serious injury’’ circumstances of the event and reporting, data collection, and sampling determinations are based and improve descriptions of any mitigation protocols; and (3) discussion of best scientific knowledge about marine procedures implemented or not professional judgment (which is mammals that interact with fisheries implemented and why; (4) information recognized as an integral component of research gears and the factors that related to occasions when the move-on mitigation implementation; see contribute to these interactions. SWFSC rule was waived based on occurrence of Mitigation). personnel are provided standard groups of California sea lions; (5) The second topic includes instruction guidance and training regarding summary information related to any on- on how to complete data collection handling of marine mammals, including ice disturbance of pinnipeds, including forms such as the marine mammal how to identify different species, bring raw sightings data and the event- watch log, the incidental take form (e.g., an individual aboard a vessel, assess the specific total counts of animals present, specific gear configuration and details level of consciousness, remove fishing counts of reactions according to a three- relevant to an interaction with protected gear, return an individual to water and point scale of response severity and species), and forms used for species log activities pertaining to the numbers of takes (differentiated by identification and biological sampling. interaction. species and age class), the distance at which a pinniped is disturbed and the The third topic includes use of SWFSC will record interaction closest point of approach for each professional judgment in any incidents information on their own standardized disturbance event; and (6) a written of marine mammal interaction and forms. To aid in serious injury evaluation of the effectiveness of instructive examples where use of best determinations and comply with the SWFSC mitigation strategies in reducing professional judgment was determined current NMFS Serious Injury Guidelines the number of marine mammal to be successful or unsuccessful. We (NMFS, 2012a, 2012b), researchers will interactions with survey gear, including recognize that many factors come into also answer a series of supplemental best professional judgment and play regarding decision-making at sea questions on the details of marine suggestions for changes to the mitigation and that it is not practicable to simplify mammal interactions. Finally, for any strategies, if any. The period of what are inherently variable and marine mammals that are killed during reporting will be annually, and the complex situational decisions into rules fisheries research activities, scientists report must be submitted not less than that may be defined on paper. However, will collect data and samples as ninety days following the end of a given it is our intent that use of best appropriate. year. Submission of this information is professional judgment be an iterative Reporting in service of an adaptive management process from year to year, in which any framework allowing NMFS to make at-sea decision-maker (i.e., responsible As is normally the case, SWFSC will appropriate modifications to mitigation for decisions regarding the avoidance of coordinate with the relevant stranding and/or monitoring strategies, as marine mammal interactions with coordinators for any unusual marine necessary, during the five-year period of survey gear through the application of mammal behavior and any stranding, validity for these regulations. best professional judgment) learns from beached live/dead, or floating marine NMFS has established a formal the prior experience of all relevant mammals that are encountered during incidental take reporting system, the SWFSC personnel (rather than from field research activities. In addition, Protected Species Incidental Take solely their own experience). The Chief Scientists (or cruise leader, CS) (PSIT) database, requiring that outcome should be increased will provide reports to SWFSC incidental takes of protected species be transparency in decision-making leadership and to the Office of Protected reported within 48 hours of the processes where best professional Resources (OPR). As a result, when occurrence. The PSIT generates judgment is appropriate and, to the marine mammals interact with survey automated messages to NMFS extent possible, some degree of gear, whether killed or released alive, a leadership and other relevant staff, standardization across common report provided by the CS will fully alerting them to the event and to the fact situations, with an ultimate goal of describe any observations of the that updated information describing the reducing marine mammal interactions. animals, the context (vessel and circumstances of the event has been It is the responsibility of the SWFSC to conditions), decisions made and inputted to the database. The PSIT and facilitate such exchange. rationale for decisions made in vessel CS reports not only provide valuable To reduce marine mammal takes over and gear handling. The circumstances of real-time reporting and information time, the SWFSC maximizes efficient these events are critical in enabling dissemination tools but also serve as an use of charter and NOAA ship time, and SWFSC and OPR to better evaluate the archive of information that may be engages in operational planning with conditions under which takes are most mined in the future to study why takes the NMFS Northwest and Pacific Islands likely occur. We believe in the long term occur by species, gear, region, etc. Fisheries Science Centers to delineate this will allow the avoidance of these SWFSC will also collect and report all respective research responsibilities and types of events in the future. necessary data, to the extent practicable

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given the primacy of human safety and outcome (mortality) is analyzed for the precision and variability associated with the well-being of captured or entangled purposes of the negligible impact abundance information, while also marine mammals, to facilitate serious determination. We discuss here the providing reasonable assurance that the injury (SI) determinations for marine connection, and differences, between stock size is equal to or greater than the mammals that are released alive. the legal mechanisms for authorizing estimate (Barlow et al., 1995). In SWFSC will require that the CS incidental take under section 101(a)(5) general, the three factors are developed complete data forms and address for activities such as SWFSC’s research on a stock-specific basis in supplemental questions, both of which activities, and for authorizing incidental consideration of one another in order to have been developed to aid in SI take from commercial fisheries. In 1988, produce conservative PBR values that determinations. SWFSC understands the Congress amended the MMPA’s appropriately account for both critical need to provide as much provisions for addressing incidental imprecision that may be estimated, as relevant information as possible about take of marine mammals in commercial well as potential bias stemming from marine mammal interactions to inform fishing operations. Congress directed lack of knowledge (Wade, 1998). decisions regarding SI determinations. NMFS to develop and recommend a Congress called for PBR to be applied In addition, the SWFSC will perform all new long-term regime to govern such within the management framework for necessary reporting to ensure that any incidental taking (see MMC, 1994). The commercial fishing incidental take incidental M/SI is incorporated as need to develop a system suited to the under section 118 of the MMPA. As a appropriate into relevant SARs. unique circumstances of commercial result, PBR cannot be applied fishing operations led NMFS to suggest appropriately outside of the section 118 Negligible Impact Analysis and a new conceptual means and associated regulatory framework without Determinations regulatory framework. That concept, consideration of how it applies within Introduction—NMFS has defined PBR, and a system for developing plans the section 118 framework, as well as negligible impact as an impact resulting containing regulatory and voluntary how the other statutory management from the specified activity that cannot measures to reduce incidental take for frameworks in the MMPA differ from be reasonably expected to, and is not fisheries that exceed PBR were the framework in section 118. PBR was reasonably likely to, adversely affect the incorporated as sections 117 and 118 in not designed and is not used as an species or stock through effects on the 1994 amendments to the MMPA. absolute threshold limiting commercial annual rates of recruitment or survival PBR is defined in section 3 of the fisheries. Rather, it serves as a means to (50 CFR 216.103). A negligible impact MMPA (16 U.S.C. 1362(20)) as the evaluate the relative impacts of those finding is based on the lack of likely maximum number of animals, not activities on marine mammal stocks. adverse effects on annual rates of including natural mortalities, that may Even where commercial fishing is recruitment or survival (i.e., population- be removed from a marine mammal causing M/SI at levels that exceed PBR, level effects). An estimate of the number stock while allowing that stock to reach the fishery is not suspended. When M/ of takes alone is not enough information or maintain its optimum sustainable SI exceeds PBR in the commercial on which to base an impact population (OSP) and, although not fishing context under section 118, determination. In addition to controlling, can be one measure NMFS may develop a take reduction considering estimates of the number of considered among other factors when plan, usually with the assistance of a marine mammals that might be ‘‘taken’’ evaluating the effects of M/SI on a take reduction team. The take reduction by mortality, serious injury, and Level A marine mammal species or stock during plan will include measures to reduce or Level B harassment, we consider the section 101(a)(5)(A) process. OSP is and/or minimize the taking of marine other factors, such as the likely nature defined in section 3 of the MMPA (16 mammals by commercial fisheries to a of any behavioral responses (e.g., U.S.C. 1362(9)) as the number of level below the stock’s PBR. That is, intensity, duration), the context of any animals which will result in the where the total annual human-caused such responses (e.g., critical maximum productivity of the M/SI exceeds PBR, NMFS is not reproductive time or location, population or the species, keeping in required to halt fishing activities migration), as well as effects on habitat, mind the carrying capacity of the habitat contributing to total M/SI but rather and the likely effectiveness of and the health of the ecosystem of utilizes the take reduction process to mitigation. We also assess the number, which they form a constituent element. further mitigate the effects of fishery intensity, and context of estimated takes Through section 2, an overarching goal activities via additional bycatch by evaluating this information relative of the statute is to ensure that each reduction measures. In other words, to population status. Consistent with the species or stock of marine mammal is under section 118 of the MMPA, PBR 1989 preamble for NMFS’s maintained at or returned to its OSP. does not serve as a strict cap on the implementing regulations (54 FR 40338; PBR values are calculated by NMFS as operation of commercial fisheries that September 29, 1989), the impacts from the level of annual removal from a stock may incidentally take marine mammals. other past and ongoing anthropogenic that will allow that stock to equilibrate Similarly, to the extent PBR may be activities are incorporated into this within OSP at least 95 percent of the relevant when considering the impacts analysis via their impacts on the time, and is the product of factors of incidental take from activities other baseline (e.g., as reflected in the relating to the minimum population than commercial fisheries, using it as regulatory status of the species, estimate of the stock (Nmin), the the sole reason to deny (or issue) population size and growth rate where productivity rate of the stock at a small incidental take authorization for those known, ongoing sources of human- population size, and a recovery factor. activities would be inconsistent with caused mortality, and specific Determination of appropriate values for Congress’s intent under section consideration of take by M/SI these three elements incorporates 101(a)(5), NMFS’ long-standing previously authorized for other NMFS significant precaution, such that regulatory definition of ‘‘negligible research activities). application of the parameter to the impact,’’ and the use of PBR under We note here that the takes from management of marine mammal stocks section 118. The standard for potential gear interactions enumerated may be reasonably certain to achieve the authorizing incidental take for activities below could result in non-serious goals of the MMPA. For example, other than commercial fisheries under injury, but their worst potential calculation of Nmin incorporates the section 101(a)(5) continues to be, among

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other things that are not related to PBR, of PBR in relation to MMPA programs called ‘‘residual PBR’’ (Wood et al., whether the total taking will have a outside the commercial fishing context 2012). We first focus our analysis on negligible impact on the species or have evolved since the agency’s early residual PBR because it incorporates stock. Nowhere does section application of PBR to section 101(a)(5) anthropogenic mortality occurring from 101(a)(5)(A) reference use of PBR to decisions. Specifically, NMFS’ denial of other sources. If the ongoing human- make the negligible impact finding or a request for incidental take caused mortality from other sources authorize incidental take through multi- authorization for the U.S. Coast Guard does not exceed PBR, then residual PBR year regulations, nor does its companion in 1996 seemingly was based on the is a positive number, and we consider provision at 101(a)(5)(D) for authorizing potential for lethal take in relation to how the anticipated or potential non-lethal incidental take under the PBR and did not appear to consider incidental M/SI from the activities being same negligible-impact standard. NMFS’ other factors that might also have evaluated compares to residual PBR MMPA implementing regulations state informed the potential for ship strike in using the framework in the following that take has a negligible impact when relation to negligible impact (61 FR paragraph. If the ongoing anthropogenic it does not adversely affect the species 54157; October 17, 1996). mortality from other sources already or stock through effects on annual rates The MMPA requires that PBR be exceeds PBR, then residual PBR is a of recruitment or survival—likewise estimated in SARs and that it be used negative number and we consider the without reference to PBR. When in applications related to the M/SI from the activities being evaluated Congress amended the MMPA in 1994 management of take incidental to as described further below. to add section 118 for commercial commercial fisheries (i.e., the take When ongoing total anthropogenic reduction planning process described in fishing, it did not alter the standards for mortality from the applicant’s specified section 118 of the MMPA and the authorizing non-commercial fishing activities does not exceed PBR and determination of whether a stock is incidental take under section 101(a)(5), residual PBR is a positive number, as a ‘‘strategic’’ as defined in section 3), but implicitly acknowledging that the simplifying analytical tool we first nothing in the statute requires the negligible impact standard under consider whether the specified activities application of PBR outside the section 101(a)(5) is separate from the could cause incidental M/SI that is less management of commercial fisheries PBR metric under section 118. In fact, than 10 percent of residual PBR (the interactions with marine mammals. in 1994 Congress also amended section ‘‘insignificance threshold,’’ see below). Nonetheless, NMFS recognizes that as a 101(a)(5)(E) (a separate provision If so, we consider M/SI from the quantitative metric, PBR may be useful governing commercial fishing incidental specified activities to represent an take for species listed under the as a consideration when evaluating the impacts of other human-caused insignificant incremental increase in Endangered Species Act) to add ongoing anthropogenic M/SI for the compliance with the new section 118 activities on marine mammal stocks. Outside the commercial fishing context, marine mammal stock in question that but retained the standard of the alone (i.e., in the absence of any other negligible impact finding under section and in consideration of all known human-caused mortality, PBR can help take) will not adversely affect annual 101(a)(5)(A) (and section 101(a)(5)(D)), rates of recruitment and survival. As showing that Congress understood that inform the potential effects of M/SI requested to be authorized under such, this amount of M/SI would not be the determination of negligible impact expected to affect rates of recruitment or and application of PBR may share 101(a)(5)(A). As noted by NMFS and the U.S. Fish and Wildlife Service in our survival in a manner resulting in more certain features but are, in fact, implementation regulations for the 1986 than a negligible impact on the affected different. amendments to the MMPA (54 FR stock unless there are other factors that Since the introduction of PBR in 40341, September 29, 1989), the could affect reproduction or survival, 1994, NMFS had used the concept Services consider many factors, when such as Level A and/or Level B almost entirely within the context of available, in making a negligible impact harassment, or other considerations implementing sections 117 and 118 and determination, including, but not such as information that illustrates other commercial fisheries management- limited to, the status of the species or uncertainty involved in the calculation related provisions of the MMPA. Prior stock relative to OSP (if known); of PBR for some stocks. In a few prior to the Court’s ruling in Conservation whether the recruitment rate for the incidental take rulemakings, this Council for Hawaii v. National Marine species or stock is increasing, threshold was identified as the Fisheries Service, 97 F. Supp. 3d 1210 decreasing, stable, or unknown; the size ‘‘significance threshold,’’ but it is more (D. Haw. 2015) and consideration of and distribution of the population; and accurately labeled an insignificance PBR in a series of section 101(a)(5) existing impacts and environmental threshold, and so we use that rulemakings, there were a few examples conditions. In this multi-factor analysis, terminology here. Assuming that any where PBR had informed agency PBR can be a useful indicator for when, additional incidental take by Level A or deliberations under other MMPA and to what extent, the agency should Level B harassment from the activities sections and programs, such as playing take an especially close look at the in question would not combine with the a role in the issuance of a few scientific circumstances associated with the effects of the authorized M/SI to exceed research permits and subsistence potential mortality, along with any other the negligible impact level, the takings. But as the Court found when factors that could influence annual rates anticipated M/SI caused by the reviewing examples of past PBR of recruitment or survival. activities being evaluated would have a consideration in Georgia Aquarium v. When considering PBR during negligible impact on the species or Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. evaluation of effects of M/SI under stock. However, M/SI above the 10 2015), where NMFS had considered section 101(a)(5)(A), we first calculate a percent insignificance threshold does PBR outside the commercial fisheries metric for each species or stock that not indicate that the M/SI associated context, ‘‘it has treated PBR as only one incorporates information regarding with the specified activities is ‘quantitative tool’ and [has not used it] ongoing anthropogenic M/SI into the approaching a level that would as the sole basis for its impact PBR value (i.e., PBR minus the total necessarily exceed negligible impact. analyses.’’ Further, the agency’s annual anthropogenic mortality/serious Rather, the 10 percent insignificance thoughts regarding the appropriate role injury estimate in the SAR), which is threshold is meant only to identify

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instances where additional analysis of adverse effects on the affected species or SWFSC research activities may affect the anticipated M/SI is not required stocks. Nonetheless, it is equally clear the species’ or stocks’ annual rates of because the negligible impact standard that in some cases the time to reach this recruitment or survival. We also clearly will not be exceeded on that aspirational OSP level could be slowed consider the interaction of those basis alone. by more than 10 percent (i.e., total mortalities with incidental taking of that Where the anticipated M/SI is near, human-caused mortality in excess of species or stock by harassment pursuant at, or above residual PBR, consideration PBR could be allowed) without to the specified activity. of other factors (positive or negative), adversely affecting a species or stock We first consider maximum potential including those outlined above, as well through effects on its rates of incidental M/SI for each stock (Table 6) as mitigation is especially important to recruitment or survival. Thus even in in consideration of NMFS’s threshold assessing whether the M/SI will have a situations where the inputs to calculate for identifying insignificant M/SI take negligible impact on the species or PBR are thought to accurately represent (10 percent of residual PBR (69 FR stock. PBR is a conservative metric and factors such as the species’ or stock’s 43338; July 20, 2004)). By considering not sufficiently precise to serve as an abundance or productivity rate, it is still the maximum potential incidental M/SI absolute predictor of population effects possible for incidental take to have a in relation to PBR and ongoing sources upon which mortality caps would negligible impact on the species or stock of anthropogenic mortality, we begin appropriately be based. For example, in even where M/SI exceeds residual PBR our evaluation of whether the potential some cases stock abundance (which is or PBR. incremental addition of M/SI through one of three key inputs into the PBR PBR is helpful in informing the SWFSC research activities may affect calculation) is underestimated because analysis of the effects of mortality on a the species’ or stock’s annual rates of marine mammal survey data within the species or stock because it is important recruitment or survival. We also U.S. EEZ are used to calculate the from a biological perspective to be able consider the interaction of those abundance even when the stock range to consider how the total mortality in a mortalities with incidental taking of that extends well beyond the U.S. EEZ. An given year may affect the population. species or stock by harassment pursuant underestimate of abundance could However, section 101(a)(5)(A) of the to the specified activity. result in an underestimate of PBR. MMPA indicates that NMFS shall Summary of Estimated Incidental Take Alternatively, we sometimes may not authorize the requested incidental take have complete M/SI data beyond the from a specified activity if we find that Here we provide a summary of the U.S. EEZ to compare to PBR, which the total of such taking [i.e., from the total incidental take authorization on an could result in an overestimate of specified activity] will have a negligible annual basis, as well as other residual PBR. The accuracy and impact on such species or stock. In information relevant to the negligible certainty around the data that feed any other words, the task under the statute impact analysis. Table 9 shows PBR calculation, such as the abundance is to evaluate the applicant’s anticipated information relevant to our negligible estimates, must be carefully considered take in relation to their take’s impact on impact analysis concerning the total to evaluate whether the calculated PBR the species or stock, not other entities’ annual taking that could occur for each accurately reflects the circumstances of impacts on the species or stock. Neither stock from NMFS’ scientific research the particular stock. M/SI that exceeds the MMPA nor NMFS’ implementing activities when considering incidental PBR may still potentially be found to be regulations call for consideration of take that may be authorized for SWFSC, negligible in light of other factors that other unrelated activities and their as well as take previously authorized for offset concern, especially when robust impacts on the species or stock. In fact, AFSC (84 FR 46788; September 5, 2019) mitigation and adaptive management in response to public comments on the and NWFSC (83 FR 36370; July 27, provisions are included. implementing regulations NMFS 2018). We authorize take by M/SI over PBR was designed as a tool for explained that such effects are not the five-year period of validity for these evaluating mortality and is defined as considered in making negligible impact regulations as indicated in Table 9 the number of animals that can be findings under section 101(a)(5), below. As noted previously, although removed while allowing that stock to although the extent to which a species some gear interactions may result in reach or maintain its OSP. OSP is or stock is being impacted by other Level A harassment or the release of an defined as a population that falls within anthropogenic activities is not ignored. uninjured animal, for the purposes of a range from the population level that is Such effects are reflected in the baseline the negligible impact analysis, we the largest supportable within the of existing impacts as reflected in the assume that all of these takes could ecosystem to the population level that species’ or stock’s abundance, potentially be in the form of M/SI. Table results in maximum net productivity, distribution, reproductive rate, and 9 also summarizes annual amounts of and thus is an aspirational management other biological indicators. take by Level B harassment that may be goal of the overall statute with no Our evaluation of the M/SI for each of authorized. specific timeframe by which it should the species and stocks for which M/SI We previously authorized take of be met. PBR is designed to ensure could occur follows. In addition, all marine mammals incidental to fisheries minimal deviation from this overarching mortality authorized for some of the research operations conducted by the goal, with the formula for PBR typically same species or stocks over the next AFSC (see 83 FR 37638 and 84 FR ensuring that growth towards OSP is not several years pursuant to our final 46788), and NWFSC (see 81 FR 38516 reduced by more than 10 percent (or rulemakings for the NMFS Alaska and 83 FR 36370). This take would equilibrates to OSP 95 percent of the Fisheries Science Center (AFSC) and the occur to some of the same stocks for time). As PBR is applied by NMFS, it NMFS Northwest Fisheries Science which we may authorize take incidental provides that growth toward OSP is not Center (NWFSC) has been incorporated to SWFSC fisheries research operations. reduced by more than 10 percent, which into the residual PBR. By considering Therefore, in order to evaluate the likely certainly allows a stock to reach or the maximum potential incidental M/SI impact of the take by M/SI in this rule, maintain its OSP in a conservative and in relation to PBR and ongoing sources we consider not only other ongoing precautionary manner—and we can of anthropogenic mortality, we begin sources of human-caused mortality but therefore clearly conclude that if PBR our evaluation of whether the potential the potential mortality authorized for were not exceeded, there would not be incremental addition of M/SI through AFSC/NWFSC. As used in this

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document, other ongoing sources of M/SI for SWFSC and previously considering ongoing sources of human-caused (anthropogenic) authorized for AFSC/NWFSC together to anthropogenic mortality. PBR and mortality refers to estimates of realized produce a maximum annual M/SI take annual M/SI values considered in Table or actual annual mortality reported in level (including take of unidentified 9 reflect the most recent information the SARs and does not include marine mammals that could accrue to available (i.e., 2019 SARs). authorized or unknown mortality. any relevant stock) and compare that Below, we consider the total taking by value to the stock’s PBR value, TABLE 9—SUMMARY INFORMATION RELATED TO SWFSC ANNUAL TAKE AUTHORIZATION, 2020–25 (CCE)

Annual Level Percent of SWFSC total AFSC/NWFSC Estimated PBR minus 1 estimated M/SI maximum Species Stock B harassment population authorization, total M/SI annual annual M/SI authorization authorization (%) 5 abundance 2 2020–25 3 M/SI 4

Gray whale ...... ENP ...... 533 2.0 0 0 0 n/a Humpback whale ...... CA/OR/WA ...... 23 0.8 0 0 0 n/a Minke whale ...... Alaska ...... 19 3.0 0 0 0 n/a Sei whale ...... CA/OR/WA ...... 10 1.9 0 0 0 n/a Fin whale ...... CA/OR/WA ...... 124 1.4 0 0 0 n/a Blue whale ...... ENP ...... 18 1.2 0 0 0 n/a Sperm whale ...... CA/OR/WA ...... 96 4.8 0 0 0 n/a Kogia spp ...... CA/OR/WA ...... 213 5.2 2 1 0.6 19.2 (3.1) Cuvier’s beaked whale ...... CA/OR/WA ...... 160 4.9 0 0 0 n/a Baird’s beaked whale ...... CA/OR/WA ...... 72 2.7 0 0 0 n/a Mesoplodont beaked CA/OR/WA ...... 84 2.8 0 0 0 n/a whales. Bottlenose dolphin ...... CA/OR/WA Offshore ...... 62 3.2 9 3 2.8 9.4 (29.8) CA Coastal ...... 13.7 3 0 0.8 0.7 (114.3) Striped dolphin ...... CA/OR/WA ...... 883 3.0 14 7 4.6 237.2 (1.9) Common dolphin (short- CA/OR/WA ...... 14,430 1.4 14 4 4 621.6 (0.6) beaked). Common dolphin (long- California ...... 1,425 1.5 14 2 3.6 8,353 (0.0) beaked). Pacific white-sided dolphin CA/OR/WA ...... 412 1.5 41 31 14.8 9 183.5 (8.1) Northern right whale dol- CA/OR/WA ...... 614 2.3 11 7 4 175.2 (2.3) phin. Risso’s dolphin ...... CA/OR/WA ...... 209 3.3 14 9 5 42.3 (11.8) Killer whale ...... ENP Offshore ...... 13 4.3 0 0 n/a n/a West Coast Transient ...... 5.3 0 0 n/a n/a ENP Southern Resident ..... 17.3 0 0 n/a n/a Short-finned pilot whale ...... CA/OR/WA ...... 30 3.6 2 2 0.8 3.3 (24.2) Harbor porpoise ...... Morro Bay ...... 675 15.9 6 6 2 2 65.6 (3.0) Monterey Bay ...... 19.5 2 22.8 (8.8) San Francisco-Russian 9.0 2 47.4 (4.2) River. Northern CA/Southern OR 2.8 2 348.8 (0.6) Northern OR/WA Coast ..... 3.1 6 4 2.4 148 (1.6) Dall’s porpoise ...... CA/OR/WA ...... 916 3.6 6 4 2.4 171.7 (1.4) Guadalupe fur seal ...... Mexico-CA ...... 313 0.9 0 0 0 n/a Northern fur seal ...... Pribilof Islands/Eastern Pa- 12,595 8 2.0 5 7 18–23 6.2 10,896 (0.1) cific. California ...... 8 2.0 7 5–13 4.2 449.2 (0.9) California sea lion ...... United States ...... 5,095 2.0 30 11 9.2 9 13,690 (0.1) Steller sea lion ...... Eastern U.S ...... 914 2.1 10 7 16–21 7 2,480 (0.3) Harbor seal ...... California ...... 1,114 3.6 14 6 6 4.8 1,598 (0.3) OR/WA Coast ...... 4.5 6 8 5.2 ? Northern elephant seal ...... California Breeding ...... 4,916 2.7 5 1 1.6 4,873.2 (0.0) 1 For some species with multiple stocks, indicated level of take could occur to individuals from any stock (as indicated in table). For some stocks, a range is pre- sented. 2 For species with multiple potentially affected stocks, value is conservatively calculated as though all estimated annual takes accrue to each potentially affected stock. 3 As explained earlier in this document, gear interaction could result in mortality, serious injury, or Level A harassment. Because we do not have sufficient informa- tion to enable us to parse out these outcomes, we present such take as a pool. For purposes of this negligible impact analysis we assume the worst case scenario (that all such takes incidental to research activities result in mortality). 4 This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock as a result of NMFS’ fisheries research activities and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To reach this total, we add one to the total for each pinniped and cetacean that may be captured in trawl gear and one to the total for each pinniped that may be captured in hook and line gear. This represents the potential that the take of an unidentified pinniped or cetacean could accrue to any given stock captured in that gear in that area. The take authorization number is formulated as a five-year total; the annual average is used only for purposes of negligible impact analysis. We recognize that portions of an animal may not be taken in a given year. 5 This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI, which is presented in the SARs) (see Table 1). In parentheses, we provide the estimated maximum annual M/SI expressed as a percentage of this value. 6 A total of 4 takes of harbor porpoise by M/SI were authorized incidental to NWFSC research occurring offshore CA/OR/WA. However, two of these were expected to occur in the lower Columbia River. Therefore, a maximum of 4 takes could accrue to the Northern OR/WA Coast stock, while a maximum of only 2 of those takes could potentially accrue to the remaining stocks of harbor porpoise. A total of 7 takes of harbor seal by M/SI were authorized incidental to NWFSC research occurring offshore CA/OR/WA. However, two of these were expected to occur in the lower Columbia River. Therefore, a maximum of 7 takes could accrue to the OR/WA Coast stock, while a maximum of only 5 of those takes could potentially accrue to the California stock of harbor seal. One take of each stock by M/SI was authorized inci- dental to AFSC research. 7 These ranges reflect that, as part of the overall take authorization for AFSC, a total of five takes of northern fur seals and Steller sea lions are expected to occur as a result specifically of International Pacific Halibut Commission longline operations. These five takes are considered as potentially accruing to either stock of north- ern fur seal or to either the eastern or western stocks of Steller sea lion; therefore, we assess the consequences of the take authorization for these stocks as though the maximum could occur for that stock. 8 Calculated on the basis of assumed relative abundance; i.e., we would expect on the basis of relative abundance in the study area that approximately 98 percent of Level B harassment would accrue to the Pribilof Islands/Eastern Pacific stock and approximately two percent would accrue to the California stock.

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9 Calculation of residual PBR for these stocks includes M/SI that occurred incidental to SWFSC research activities. Assumed annual M/SI due to SWFSC is ac- counted for in this calculation through the take authorization number. Therefore, the assumed effects of SWFSC research on these stocks is overestimated as the take numbers are incorporated to the calculation through both the reduction of ‘‘available’’ PBR due to past interactions as well as through the take number that is then evaluated against the residual PBR.

TABLE 10—ANNUAL TAKE AUTHORIZATION IN THE AMLR, 2020–25

Estimated Estimated annual annual Total annual Level B Level B Level B Percent of Species harassment harassment harassment estimated (acoustic (on-ice authorization population exposure) disturbance)

Southern right whale ...... 0 0 0 n/a Humpback whale ...... 25 0 25 0.3 Antarctic minke whale ...... 5 0 5 0.0 Fin whale ...... 57 0 57 1.2 Blue whale ...... 0 0 0 n/a Sperm whale ...... 5 0 5 0.0 Arnoux’ beaked whale 1 ...... 2 0 2 ? Southern bottlenose whale ...... 10 0 10 0.0 Hourglass dolphin ...... 10 0 10 0.0 Killer whale ...... 10 0 10 0.0 Long-finned pilot whale ...... 21 0 21 0.0 Spectacled porpoise 1 ...... 10 0 10 ? Antarctic fur seal ...... 136 417 553 0.0 Southern elephant seal ...... 2 5 7 0.0 Weddell seal ...... 74 225 224 2 0.1 Crabeater seal ...... 884 2,704 3,588 2 0.1 Leopard seal ...... 22 68 90 2 0.0 1 There is no available abundance information for these species. See Small Numbers below for further discussion. 2 A range is provided for these species’ abundance. We have used the lower bound of the given range for calculation of these values.

Analysis—To avoid repetition, the use of active acoustic sources has the authorization. We also produced majority of our analysis applies to all likely potential to cause any effect estimates of incidents of potential Level the species listed in Tables 9–10, given exceeding Level B harassment of marine B harassment due to disturbance of that the anticipated effects of SWFSC’s mammals. We have produced what we hauled-out pinnipeds that may result research activities on marine mammals believe to be precautionary estimates of from the physical presence of are expected to be relatively similar in potential incidents of Level B researchers in the Antarctic; these nature. Where there are meaningful harassment. There is a general lack of estimates are combined with the differences between species or stocks, or information related to the specific way estimates of Level B harassment that groups of species, in anticipated that these acoustic signals, which are may result from use of active acoustic individual responses to activities, generally highly directional and devices. impact of expected take on the transient, interact with the physical Here, we consider authorized Level B population due to differences in environment. Additionally, there is a harassment take less than five percent of population status, or impacts on habitat, lack of meaningful understanding of population abundance to be ‘‘de they are described independently in the marine mammal perception of these minimis,’’ and authorized Level B analysis below. signals. The procedure for producing harassment taking between 5–15 percent The majority of stocks that may these estimates, described in detail in as ‘‘low.’’ A ‘‘moderate’’ amount of potentially be taken by M/SI (18 of 22) ‘‘Estimated Take Due to Acoustic authorized taking by Level B harassment fall below the insignificance threshold Harassment,’’ represents a reasonable would be from 15–25 percent, and (i.e., 10 percent of residual PBR), while and precautionary effort towards ‘‘high’’ above 25 percent. Of the 53 an additional two stocks do not have quantifying the potential for exposure to stocks that may be subject to Level B current PBR values and therefore are noise from these sources, which we harassment, the level of taking that may evaluated using other factors. We first equate herein with Level B harassment. be authorized would represent a de consider stocks expected to be affected The sources considered here have minimis impact for 43 stocks and a low only by Level B harassment and those moderate to high output frequencies, impact for an additional four stocks. We stocks that fall below the insignificance generally short ping durations, and are do not consider these impacts further threshold. Next, we consider those typically focused (highly directional) to for these 47 stocks. stocks above the insignificance serve their intended purpose of The level of taking by Level B threshold (i.e., two stocks of bottlenose mapping specific objects, depths, or harassment would represent a moderate dolphin, Risso’s dolphin, and short- environmental features. In addition, impact on three additional stocks: The finned pilot whale) and those without some of these sources can be operated southern resident stock of killer whales PBR values (the dwarf sperm whale, for in different output modes (e.g., energy and Morro Bay and Monterey Bay stocks which no information is available, and can be distributed among multiple of harbor porpoise. However, the values the Oregon and Washington coastal output beams) that may lessen the calculated for proportion of population stock of harbor seal). likelihood of perception by and potentially affected assume that all As stated previously and described in potential impacts on marine mammals estimated takes species-wide would detail in support of the 2015 rule (80 FR in comparison with the quantitative accrue to each of the potentially affected 8166), we do not believe that SWFSC estimates that guide our take stocks. In the absence of information to

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better refine stock-specific values, this the same factors, in conjunction with (0.8), the residual PBR is also low (0.7). worst-case proportion is an appropriate the fact that SWFSC survey effort is (Note that there is no take by M/SI way to evaluate whether an amount of widely dispersed in space and time, authorized for this stock other than for taking is greater than small numbers. indicate that repeated exposures of the SWFSC activities.) Here we provide For purposes of determining whether same individuals would be very additional detail regarding the available the total impacts to a stock represent no unlikely. For these reasons, we do not information for the coastal stock of greater than a negligible impact, consider the level of take by acoustic bottlenose dolphin and explain our however, these values are overly disturbance to represent a significant conclusion that the calculated conservative. We know that a majority additional population stressor when proportion of residual PBR presents an of SWFSC use of active acoustic systems considered in context with the level of unrealistically conservative assessment will not be concentrated in either of take by M/SI for any species, including of the potential impacts to the stock due Morro Bay or Monterey Bay and, those for which no abundance estimate to SWFSC fisheries research activity. therefore, we conclude that the actual is available. First, the available information indicates significance of taking by Level B Similarly, disturbance of pinnipeds that the PBR value is biased low. PBR harassment for these stocks of harbor on haul-outs by researchers (expected is calculated in consideration of the porpoise will likely be significantly less for Antarctic pinnipeds) is expected to minimum population size which, for than ‘‘moderate.’’ Similarly, the only be infrequent and cause only a coastal bottlenose dolphins, represents potential avenue for effects to southern temporary disturbance on the order of the minimum number of individually resident killer whales would be during minutes. Monitoring results from other identifiable animals documented during the time when whales are foraging in activities involving the disturbance of mark-recapture surveys in 2009–11 pinnipeds and relevant studies of coastal waters. Considering that whales (Carretta et al., 2017). This number (346 pinniped populations that experience are present in coastal waters for animals) represents the minimum more regular vessel disturbance indicate relatively brief portions of the year and abundance, but estimates of population that individually significant or that SWFSC research has limited abundance resulting from the 2009–11 population level impacts are unlikely to overlap with the whales’ relatively study range from 411–564 animals occur. When considering the individual shallow foraging grounds in coastal (Carretta et al., 2017). Even these higher animals likely affected by this waters, we again conclude that actual abundance estimates represent marked disturbance, only a small fraction of the significance of any potential acoustic animals only, and exclude the exposure for the stock would be less estimated population abundance of the affected stocks would be expected to approximately 40 percent of animals than moderate. Therefore, we do not that are not individually recognizable consider these stocks further. For an experience the disturbance. For Risso’s dolphin, short-finned pilot (Weller et al., 2016). In addition, the additional three stocks (Arnoux’ beaked whale, and the offshore stock of estimates based on the 2009–11 study whale and spectacled porpoise in bottlenose dolphin, maximum total were the highest ever for the population Antarctica and dwarf sperm whales in ∼ potential M/SI due to NMFS’ fisheries and included a high proportion ( 75 the CCE whale), there is no abundance research activity (SWFSC, NWFSC, and percent) of previously uncatalogued estimate upon which to base a AFSC combined) is approximately 12, dolphins (Weller et al., 2016). The comparison. However, we note that the 24, and 30 percent of residual PBR, number of individually identifiable anticipated number of incidents of take respectively. For example, PBR for animals from 2009–11 exceeded by Level B harassment are very low (2 Risso’s dolphin is currently set at 46 previous estimates for the abundance of and 10 for the Antarctic species, and the annual average of known the entire marked population. These respectively, and 213 combined for both ongoing anthropogenic M/SI is 3.7, facts suggest that the stock may have stocks of Kogia spp.) and likely yielding a residual PBR value of 42.3. grown in the ten years since conclusion represent a de minimis impact on these The maximum combined annual of the last abundance study. Finally, stocks. average M/SI incidental to NMFS although the stock is confined to U.S. As described previously, there is fisheries research activity is 5, or 11.8 waters for management purposes, the some minimal potential for temporary percent of residual PBR. The only biological stock is transboundary and an effects to hearing for certain marine known source of other anthropogenic unknown additional number of mammals, but most effects would likely mortality for these species is in dolphins are likely found in Mexico. be limited to temporary behavioral commercial fisheries. For the Risso’s Regarding anthropogenic M/SI that is disturbance. Effects on individuals that dolphin and offshore stock of bottlenose assumed to be ongoing, current are taken by Level B harassment will dolphin, such take is considered to be estimates are based on scant data. With likely be limited to reactions such as insignificant and approaching zero 9 percent observer coverage in the increased swimming speeds, increased mortality and serious injury. This is not coastal halibut/yellowtail gillnet fishery surfacing time, or decreased foraging (if the case for the short-finned pilot whale; during 2010–14, no entanglements were such activity were occurring), which are however, the annual take from fisheries observed, and none have been observed all reactions that are considered to be of (1.2) and from NMFS’s fisheries since 2003 (Carretta et al., 2017). The low severity (e.g., Ellison et al., 2012). research (0.8) are both very low. There basis for the assumption that a Individuals may move away from the are no other factors that would lead us minimum of 1.6 dolphins are killed source if disturbed; but, because the to believe that take by M/SI of 24 annually in fisheries was the discovery source is itself moving and because of percent of residual PBR would be of two carcasses with evidence of the directional nature of the sources problematic for this species. entanglement from 2010–14. In considered here, there is unlikely to be For the California coastal stock of addition, during this same period, one even temporary displacement from areas bottlenose dolphin, maximum total dolphin was found floating under a U.S. of significance and any disturbance potential M/SI due to NMFS’ fisheries Navy marine mammal program dolphin would be of short duration. Although research activity (SWFSC, NWFSC, and pen enclosure dock and was assumed to there is no information on which to base AFSC combined) is approximately 114 have become entangled in the net any distinction between incidents of percent of residual PBR. Although the curtain, and another dolphin became harassment and individuals harassed, maximum annual take by M/SI is low entrapped and drowned in a sea otter

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research net. Both of these incidents predicted number of incidents of Based on the analysis contained could rightly be considered as potential mortality are at insignificant herein of the activity (including the unpredictable occurrences with little levels for a majority of affected stocks; required mitigation and monitoring likelihood of recurring. However, they (4) consideration of additional factors measures) and the anticipated take of add 0.4 animals to the assumed amount for Risso’s dolphin, short-finned pilot marine mammals, NMFS finds that of ongoing annual anthropogenic M/SI. whale, and the offshore stock of small numbers of marine mammals will None of NMFS’ fisheries research bottlenose dolphin do not reveal cause be taken relative to the population size activities on the west coast have ever for concern; (5) total maximum potential of the affected species or stocks. resulted in an interaction with M/SI incidental to NMFS fisheries bottlenose dolphins. In summary, the research activity for coastal bottlenose Impact on Availability of Affected available information leads us to dolphin, considered in conjunction with Species for Taking for Subsistence Uses conclude that the PBR value for the other sources of ongoing mortality and stock is likely unrealistically low and in context of the available information There are no relevant subsistence uses that the assumed annual anthropogenic regarding stock abundance, presents of marine mammals implicated by these M/SI value may be higher than is only a minimal incremental addition to actions. Therefore, we have determined actually occurring. Therefore, we find total M/SI; (6) available information that the total taking of affected species that the potential total take of coastal regarding stocks for which no current or stocks would not have an unmitigable bottlenose dolphin considered here PBR estimate is available indicates that adverse impact on the availability of represents a negligible impact on the total maximum potential M/SI is such species or stocks for taking for stock. sustainable; and (7) the presumed subsistence purposes. PBR is unknown for harbor seals on efficacy of the planned mitigation Adaptive Management the Oregon and Washington coasts. The measures in reducing the effects of the Oregon/Washington coast stock of specified activity to the level of least The regulations governing the take of harbor seal was considered to be stable practicable adverse impact. In marine mammals incidental to SWFSC following the most recent abundance combination, we believe that these fisheries research survey operations estimates (in 1999, stock abundance factors demonstrate that the specified contain an adaptive management estimated at 24,732). However, a activity will have only short-term effects component. The inclusion of an Washington Department of Fish and on individuals (resulting from Level B adaptive management component will Wildlife expert (S. Jeffries) stated an harassment) and that the total level of be both valuable and necessary within unofficial abundance of 32,000 harbor taking will not impact rates of the context of five-year regulations for seals in Washington (Mapes, 2013). recruitment or survival sufficiently to activities that have been associated with Therefore, it is reasonable to assume result in population-level impacts. marine mammal mortality. that at worst, the stocks have not Based on the analysis contained declined since the last abundance herein of the likely effects of the The reporting requirements associated estimates. Ongoing anthropogenic specified activity on marine mammals with this rule are designed to provide mortality is estimated at 10.6 harbor and their habitat, and taking into OPR with monitoring data from the seals per year. Therefore, we reasonably consideration the implementation of the previous year to allow consideration of assume that the maximum potential required monitoring and mitigation whether any changes are appropriate. annual M/SI incidental to NMFS’ measures, we find that the total marine OPR and the SWFSC will meet annually fisheries research activities (5.2) is a mammal take from the proposed to discuss the monitoring reports and small fraction of any sustainable take activities will have a negligible impact current science and whether mitigation level that might be calculated for the on the affected marine mammal species or monitoring modifications are stock. or stocks. appropriate. The use of adaptive PBR is also undetermined for the Small Numbers management allows OPR to consider dwarf sperm whale. However, a PBR of new information from different sources 19.2 is calculated for the pygmy sperm As noted above, only small numbers to determine (with input from the whale, and there are no additional of incidental take may be authorized SWFSC regarding practicability) on an known sources of anthropogenic M/SI under Section 101(a)(5)(A) of the MMPA annual or biennial basis if mitigation or for Kogia spp. Although it is possible for specified activities. The MMPA does monitoring measures should be that there are fewer dwarf sperm whales not define small numbers and so, in modified (including additions or than pygmy sperm whales in the CCE, practice, where estimated numbers are deletions). Mitigation measures could be we reasonably assume that the available, NMFS compares the number modified if new data suggests that such of individuals taken to the most maximum potential annual M/SI modifications would have a reasonable appropriate estimation of abundance of incidental to NMFS’ fisheries research likelihood of reducing adverse effects to the relevant species or stock in our activities (0.6) is a small fraction of any marine mammals and if the measures sustainable take level that might be determination of whether an are practicable. calculated for the stock. authorization is limited to small In summary, our negligible impact numbers of marine mammals. The following are some of the analysis is founded on the following Additionally, other qualitative factors possible sources of applicable data to be factors: (1) The possibility of injury, may be considered in the analysis, such considered through the adaptive serious injury, or mortality from the use as the temporal or spatial scale of the management process: (1) Results from of active acoustic devices may activities. monitoring reports, as required by reasonably be considered discountable; Please see Tables 9 and 10 for MMPA authorizations; (2) results from (2) the anticipated incidents of Level B information relating to this small general marine mammal and sound harassment from the use of active numbers analysis. The total amount of research; and (3) any information which acoustic devices and physical taking is less than five percent for a reveals that marine mammals may have disturbance of pinnipeds consist of, at majority of stocks, and the total amount been taken in a manner, extent, or worst, temporary and relatively minor of taking is less than one-third of the number not authorized by these modifications in behavior; (3) the stock abundance for all stocks. regulations or subsequent LOAs.

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National Environmental Policy Act Endangered Species Act (ESA) Procedure Act (5 U.S.C. 553(d)(3)) to To comply with the National There are multiple marine mammal waive the 30-day delay in the effective Environmental Policy Act of 1969 species listed under the ESA with date of this final rule. No individual or (NEPA; 42 U.S.C. 4321 et seq.) and confirmed or possible occurrence in the entity other than the SWFSC is affected NOAA Administrative Order (NAO) proposed specified geographical regions by the provisions of these regulations. 216–6A, NMFS must evaluate our (see Tables 1 and 2). The authorization The SWFSC has requested that this final proposed action (i.e., the promulgation of incidental take pursuant to the rule take effect on October 30, 2020, to of regulations and subsequent issuance SWFSC’s specified activity would not accommodate the SWFSC’s LOA of incidental take authorization) and affect any designated critical habitat. expiring on October 29, 2020, so as to alternatives with respect to potential OPR requested initiation of consultation not cause a disruption in research impacts on the human environment. with NMFS’ West Coast Regional Office activities. The waiver of the 30-day In 2015, NMFS prepared a (WCRO) under section 7 of the ESA on delay of the effective date of the final Programmatic Environmental the promulgation of five-year rule will ensure that the MMPA final Assessment (PEA; Programmatic regulations and the subsequent issuance rule and LOA are in place by the time Environmental Assessment for Fisheries of LOAs to SWFSC under section the previous authorizations expire. Any Research Conducted and Funded by the 101(a)(5)(A) of the MMPA. delay in finalizing the rule would result Southwest Fisheries Science Center) to WCRO issued a biological opinion to in either: (1) A suspension of planned consider the direct, indirect and OPR and to the SWFSC (concerning the research, which would disrupt the cumulative effects to the human conduct of the specified activities) provision of vital data necessary for environment resulting from SWFSC’s which concluded that the issuance of effective management of fisheries; or (2) activities as well as the NMFS Office of the authorizations is not likely to the SWFSC’s procedural non- Protected Resources (OPR) issuance of adversely affect any listed marine compliance with the MMPA (should the the regulations and subsequent mammal species. SWFSC conduct research without an incidental take authorization. NMFS LOA), thereby resulting in the potential made the PEA available to the public for Classification for unauthorized takes of marine review and comment, in relation Pursuant to the procedures mammals. Moreover, the SWFSC is specifically to its suitability for established to implement Executive ready to implement the regulations assessment of the impacts of our action Order 12866, the Office of Management immediately and requested the waiver. under the MMPA. OPR signed a Finding and Budget has determined that this For these reasons, NMFS finds good of No Significant Impact (FONSI) proposed rule is not significant. cause to waive the 30-day delay in the related to our action under the MMPA Pursuant to section 605(b) of the effective date. In addition, the rule on August 31, 2015. The PEA and the Regulatory Flexibility Act (RFA), the authorizes incidental take of marine 2015 FONSI are available online at: Chief Counsel for Regulation of the mammals that would otherwise be www.fisheries.noaa.gov/action/ Department of Commerce certified to prohibited under the statute. Therefore, incidental-take-authorization-noaa- the Chief Counsel for Advocacy of the by granting an exception to the SWFSC, fisheries-swfsc-fisheries-and-ecosystem- Small Business Administration at the the rule will relieve restrictions under research. proposed rule stage that this action will the MMPA, which provides a separate On May 11, 2020, NMFS announced not have a significant economic impact basis for waiving the 30-day effective the availability of a ‘‘Draft on a substantial number of small date for the rule. Supplemental Programmatic entities. SWFSC is the sole entity that List of Subjects in 50 CFR Part 219 Environmental Assessment (SPEA) for would be subject to the requirements of Fisheries Research Conducted and these regulations, and the SWFSC is not Exports, Fish, Imports, Indians, Funded by the Southwest Fisheries a small governmental jurisdiction, small Labeling, Marine mammals, Penalties, Science Center’’ for review and organization, or small business, as Reporting and recordkeeping comment (85 FR 27719). The purpose of defined by the RFA. No comments were requirements, Seafood, Transportation. the Draft SPEA is to evaluate potential received regarding this certification or Dated: December 14, 2020. direct, indirect, and cumulative effects on the economic impacts of the rule Samuel D. Rauch III, of unforeseen changes in research that more generally. As a result, a regulatory were not analyzed in the 2015 PEA, or Deputy Assistant Administrator for flexibility analysis is not required and Regulatory Programs, National Marine new research activities along the U.S. none has been prepared. Fisheries Service. West Coast, throughout the Eastern Notwithstanding any other provision Tropical Pacific Ocean, and in the of law, no person is required to respond ■ For reasons set forth in the preamble Scotia Sea area off Antarctica. Where to nor shall a person be subject to a NOAA adds part 219 to read as follows: necessary, updates to certain penalty for failure to comply with a information on species, stock status or collection of information subject to the PART 219—REGULATIONS other components of the affected requirements of the Paperwork GOVERNING THE TAKING AND environment that may result in different Reduction Act (PRA) unless that IMPORTING OF MARINE MAMMALS conclusions from the 2015 PEA are collection of information displays a presented in this analysis. currently valid OMB control number. Subpart A—Taking Marine Mammals NMFS evaluated information in the However, this rule does not contain a Incidental to Southwest Fisheries PEA, SPEA, and SWFSC’s application, collection-of-information requirement Science Center Fisheries Research as well as the 2015 FONSI, and subject to the provisions of the PRA determined that the initial FONSI is Sec. because the applicant is a Federal 219.1 Specified activity and specified sufficient to support issuance of these agency. geographical region. regulations and subsequent Letters of Waiver of Delay in Effective Date 219.2 Effective dates. Authorization. NMFS has documented 219.3 Permissible methods of taking. this determination in a memorandum NMFS has determined that there is 219.4 Prohibitions. for the record. good cause under the Administrative 219.5 Mitigation requirements.

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219.6 Requirements for monitoring and (3) Take any marine mammal as is practicable upon arrival at the reporting. specified in such LOA in any manner sampling station. 219.7 Letters of Authorization. other than as specified; (2) SWFSC must initiate marine 219.8 Renewals and modifications of (4) Take a marine mammal specified mammal watches (visual observation) at Letters of Authorization. 219.9–219.10 [Reserved] in such LOA if NMFS determines such least 15 minutes prior to beginning of taking results in more than a negligible net deployment (or for the amount of Subpart B [Reserved] impact on the species or stocks of such time to travel between stations if less Authority: 16 U.S.C. 1361 et seq. marine mammal; or than 15 minutes) but must also conduct (5) Take a marine mammal specified monitoring during any pre-set activities Subpart A—Taking Marine Mammals in such LOA if NMFS determines such including CTD casts and plankton or Incidental to Southwest Fisheries taking results in an unmitigable adverse bongo net hauls. Science Center Fisheries Research impact on the species or stock of such (3) In the CCE, SWFSC must marine mammal for taking for implement the move-on rule mitigation § 219.1 Specified activity and specified subsistence uses. protocol, as described in this paragraph. geographical region. (b) [Reserved] If one or more marine mammals, with (a) Regulations in this subpart apply the exception of baleen whales, are only to the National Marine Fisheries § 219.5 Mitigation requirements. observed within 1 nautical mile (nmi) of Service’s (NMFS) Southwest Fisheries When conducting the activities the planned sampling location during Science Center (SWFSC) and those identified in § 219.1(a), the mitigation the visual observation period, SWFSC persons it authorizes or funds to measures contained in any LOA issued must move on to another sampling conduct activities on its behalf for the under §§ 216.106 of this chapter and location. If, after moving on, marine taking of marine mammals that occurs 219.7 must be implemented. mammals remain within 1 nmi, the in the areas outlined in paragraph (b) of (a) General conditions. (1) SWFSC SWFSC must move again or skip the this section and that occurs incidental must take all necessary measures to station. SWFSC may use best to research survey program operations. coordinate and communicate in advance professional judgment in making these (b) The taking of marine mammals by of each specific survey with the decisions but may not elect to conduct SWFSC may be authorized in a Letter of National Oceanic and Atmospheric trawl survey activity when marine Authorization (LOA) only if it occurs Administration’s (NOAA) Office of mammals other than baleen whales within the California Current Ecosystem Marine and Aviation Operations remain within the 1-nmi zone. (CCE) or Antarctic Marine Living (OMAO) or other relevant parties on (4) SWFSC must maintain visual Resources Ecosystem (AMLR). non-NOAA platforms to ensure that all monitoring effort during the entire mitigation measures and monitoring period of time that trawl gear is in the § 219.2 Effective dates. requirements described herein, as well water (i.e., throughout gear deployment, Regulations in this subpart are as the specific manner of fishing, and retrieval). If marine effective from January 15, 2021 through implementation and relevant event- mammals are sighted before the gear is January 15, 2026. contingent decision-making processes, fully removed from the water, SWFSC are clearly understood and agreed upon. must take the most appropriate action to § 219.3 Permissible methods of taking. (2) SWFSC must coordinate and avoid marine mammal interaction. Under LOAs issued pursuant to conduct briefings at the outset of each SWFSC may use best professional §§ 216.106 of this chapter and 219.7, the survey and as necessary between ship’s judgment in making this decision. Holder of the LOA (hereinafter crew (Commanding Officer/master or (5) If trawling operations have been ‘‘SWFSC’’) may incidentally, but not designee(s), as appropriate) and suspended because of the presence of intentionally, take marine mammals scientific party in order to explain marine mammals, SWFSC may resume within the area described in § 219.1(b) responsibilities, communication trawl operations when practicable only by Level B harassment associated with procedures, marine mammal monitoring when the animals are believed to have use of active acoustic systems and protocol, and operational procedures. departed the 1 nmi area. SWFSC may physical or visual disturbance of (3) SWFSC must coordinate as use best professional judgment in hauled-out pinnipeds and by Level A necessary on a daily basis during survey making this determination. harassment, serious injury, or mortality cruises with OMAO personnel or other (6) SWFSC must implement standard associated with use of fisheries research relevant personnel on non-NOAA survey protocols to minimize potential gear, provided the activity is in platforms to ensure that requirements, for marine mammal interactions, compliance with all terms, conditions, procedures, and decision-making including maximum tow durations at and requirements of the regulations in processes are understood and properly target depth and maximum tow this subpart and the appropriate LOA. implemented. distance, and shall carefully empty the (4) When deploying any type of trawl as quickly as possible upon § 219.4 Prohibitions. sampling gear at sea, SWFSC must at all retrieval. Trawl nets must be cleaned (a) Notwithstanding takings times monitor for any unusual prior to deployment. contemplated in § 219.1 and authorized circumstances that may arise at a (7) SWFSC must install and use a by a LOA issued under §§ 216.106 of sampling site and use best professional marine mammal excluder device at all this chapter and 219.7, no person in judgment to avoid any potential risks to times when the Nordic 264 trawl net or connection with the activities described marine mammals during use of all any other net is used for which the in § 219.1 may: research equipment. device is appropriate. (1) Violate, or fail to comply with, the (5) SWFSC must implement handling (8) SWFSC must install and use terms, conditions, and requirements of and/or disentanglement protocols as acoustic deterrent devices whenever any this subpart or a LOA issued under specified in guidance provided to midwater trawl net is used, with two to §§ 216.106 of this chapter and 219.7; SWFSC survey personnel. four devices placed along the footrope (2) Take any marine mammal not (b) Trawl survey protocols. (1) SWFSC and/or headrope of the net. SWFSC specified in such LOA; must conduct trawl operations as soon must ensure that the devices are

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operating properly before deploying the remain onsite or move on to another (2) Marine mammal watches must be net. sampling location. If remaining onsite, conducted by watch-standers (those (c) Pelagic longline survey protocols. the set must be delayed. If the animals navigating the vessel and/or other crew) (1) SWFSC must deploy longline gear as depart or appear to no longer be at risk at all times when the vessel is being soon as is practicable upon arrival at the of interacting with the vessel or gear, a operated. sampling station. further observation period must be (3) SWFSC must monitor any (2) SWFSC must initiate marine conducted. If no further observations are potential disturbance of pinnipeds on mammal watches (visual observation) made or the animals still do not appear ice, paying particular attention to the no less than 15 minutes (or for the to be at risk of interaction, then the set distance at which different species of duration of transit between locations, if may be made. If the vessel is moved to pinniped are disturbed. Disturbance shorter than 15 minutes) prior to both a different area, the move-on rule must be recorded according to a three- deployment and retrieval of longline mitigation protocol would begin anew. point scale representing increasing seal gear. If, after moving on, marine mammals response to disturbance. (3) SWFSC must implement the move- remain at risk of interaction, the SWFSC (c) Training. (1) SWFSC must conduct on rule mitigation protocol, as described must move again or skip the station. annual training for all chief scientists in this paragraph. If one or more marine Marine mammals that are sighted and other personnel who may be mammals, with the exception of groups further than 500 m from the vessel must responsible for conducting dedicated of five or fewer California sea lions, are be monitored to determine their marine mammal visual observations to observed within 1 nmi of the planned position and movement in relation to explain mitigation measures and sampling location during the visual the vessel to determine whether the monitoring and reporting requirements, observation period, SWFSC must move move-on rule mitigation protocol should mitigation and monitoring protocols, on to another sampling location. If, after be implemented. SWFSC may use best marine mammal identification, moving on, marine mammals remain professional judgment in making these completion of datasheets, and use of within 1 nmi, the SWFSC must move decisions. equipment. SWFSC may determine the again or skip the station. SWFSC may (4) SWFSC must maintain visual agenda for these trainings. use best professional judgment in monitoring effort during the entire (2) SWFSC must also dedicate a making these decisions but may not period of time that purse seine gear is portion of training to discussion of best elect to conduct pelagic longline survey in the water (i.e., throughout gear professional judgment, including use in activity when animals remain within deployment, fishing, and retrieval). If any incidents of marine mammal the 1-nmi zone. marine mammals are sighted before the interaction and instructive examples (4) SWFSC must maintain visual gear is fully removed from the water, where use of best professional judgment monitoring effort during the entire SWFSC must take the most appropriate was determined to be successful or period of gear deployment and retrieval. action to avoid marine mammal unsuccessful. If marine mammals are sighted before interaction. SWFSC may use best (3) SWFSC must coordinate with the gear is fully deployed or retrieved, professional judgment in making this NMFS’ Northwest Fisheries Science SWFSC must take the most appropriate decision. Center (NWFSC) regarding surveys action to avoid marine mammal (5) If purse seine operations have been conducted in the CCE, such that training interaction. SWFSC may use best suspended because of the presence of and guidance related to handling professional judgment in making this marine mammals, SWFSC may resume procedures and data collection is decision. seine operations when practicable only consistent. (5) If deployment or retrieval when the animals are believed to have operations have been suspended (d) Handling procedures and data departed the area. SWFSC may use best collection. (1) SWFSC must implement because of the presence of marine professional judgment in making this mammals, SWFSC may resume such standardized marine mammal handling, determination. disentanglement, and data collection operations when practicable only when (6) If any cetaceans are observed in a procedures. These standard procedures the animals are believed to have purse seine net, SWFSC must will be subject to approval by NMFS’s departed the 1 nmi area. SWFSC may immediately open the net and free the Office of Protected Resources (OPR). use best professional judgment in animals. making this decision. (2) When practicable, for any marine (6) SWFSC must implement standard § 219.6 Requirements for monitoring and mammal interaction involving the survey protocols, including maximum reporting. release of a live animal, SWFSC must soak durations and a prohibition on (a) Compliance coordinator. SWFSC collect necessary data to facilitate a chumming. must designate a compliance serious injury determination. (d) Purse seine survey protocols. (1) coordinator who shall be responsible for (3) SWFSC must provide its relevant SWFSC must conduct purse seine ensuring compliance with all personnel with standard guidance and operations as soon as is practicable requirements of any LOA issued training regarding handling of marine upon arrival at the sampling station. pursuant to § 216.106 of this chapter mammals, including how to identify (2) SWFSC must conduct marine and § 219.7 and for preparing for any different species, bring an individual mammal watches (visual observation) subsequent request(s) for incidental take aboard a vessel, assess the level of prior to beginning of net deployment. authorization. consciousness, remove fishing gear, (3) SWFSC must implement the move- (b) Visual monitoring program. (1) return an individual to water, and log on rule mitigation protocol, as described Marine mammal visual monitoring must activities pertaining to the interaction. in this paragraph for use of purse seine occur prior to deployment of trawl, (4) SWFSC must record such data on gear. If one or more killer whales or hook and line, and purse seine gear, standardized forms, which will be small cetaceans (i.e., dolphin or respectively; throughout deployment of subject to approval by OPR. SWFSC porpoise) or five or more pinnipeds are gear and active fishing of research gears must also answer a standard series of observed within 500 m of the planned (not including longline soak time); prior supplemental questions regarding the sampling location before setting the to retrieval of longline gear; and details of any marine mammal purse seine gear, SWFSC must either throughout retrieval of all research gear. interaction.

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(e) Reporting. (1) SWFSC must report coordination with NWFSC or NMFS’ (xii) To the extent practicable, all incidents of marine mammal West Coast Regional Office. photographs or video footage of the interaction to NMFS’s Protected Species (f) Reporting of injured or dead animal(s). Incidental Take database within 48 marine mammals. (1) In the event that hours of occurrence and must provide personnel involved in the survey § 219.7 Letters of Authorization. supplemental information to OPR upon activities covered by the authorization (a) To incidentally take marine request. Information related to marine discover an injured or dead marine mammals pursuant to these regulations, mammal interaction (animal captured or mammal, SWFSC must report the SWFSC must apply for and obtain an entangled in research gear) must include incident to OPR and to the appropriate LOA. details of survey effort, full descriptions West Coast Regional Stranding (b) An LOA, unless suspended or of any observations of the animals, the Coordinator as soon as feasible. The revoked, may be effective for a period of context (vessel and conditions), report must include the following time not to exceed the expiration date decisions made, and rationale for information: of these regulations. decisions made in vessel and gear (i) Time, date, and location (latitude/ (c) If an LOA expires prior to the handling. longitude) of the first discovery (and expiration date of these regulations, (2) SWFSC must submit annual updated location information if known SWFSC may apply for and obtain a reports including: and applicable); renewal of the LOA. (i) An annual summary report to OPR (ii) Species identification (if known) (d) In the event of projected changes not later than 90 days following the end or description of the animal(s) involved; to the activity or to mitigation and (iii) Condition of the animal(s) of a given year. SWFSC must provide a monitoring measures required by an (including carcass condition if the final report within 30 days following LOA, SWFSC must apply for and obtain animal is dead); a modification of the LOA as described resolution of comments on the draft (iv) Observed behaviors of the report. in § 219.8. animal(s), if alive; (e) The LOA shall set forth: (ii) These reports must contain, at (v) If available, photographs or video minimum, the following: (1) Permissible methods of incidental footage of the animal(s); and taking; (A) Annual line-kilometers surveyed (vi) General circumstances under during which predominant active (2) Means of effecting the least which the animal was discovered. practicable adverse impact (i.e., acoustic sources were used; (2) In the event of a ship strike of a mitigation) on the species, its habitat, (B) Summary information regarding marine mammal by any vessel involved and on the availability of the species for use of all hook and line, purse seine, in the activities covered by the subsistence uses; and and trawl gear, including number of authorization, SWFSC must report the (3) Requirements for monitoring and sets, hook hours, tows, etc., specific to incident to OPR and to the appropriate reporting. each gear; West Coast Regional Stranding (f) Issuance of the LOA shall be based (C) Accounts of all incidents of Coordinator as soon as feasible. The on a determination that the level of significant marine mammal interactions, report must include the following taking will be consistent with the including circumstances of the event information: findings made for the total taking and descriptions of any mitigation (i) Time, date, and location (latitude/ allowable under these regulations. procedures implemented or not longitude) of the incident; (g) Notice of issuance or denial of an implemented and why, and, for (ii) Species identification (if known) LOA shall be published in the Federal interactions due to use of pelagic or description of the animal(s) involved; Register within thirty days of a longline or purse seine, whether the (iii) Vessel’s speed during and leading determination. move-on rule was waived due to the up to the incident; presence of five or fewer California sea (iv) Vessel’s course/heading and what § 219.8 Renewals and modifications of lions; operations were being conducted (if Letters of Authorization. (D) Summary information related to applicable); (v) Status of all sound sources in use; (a) An LOA issued under §§ 216.106 any on-ice disturbance of pinnipeds, (vi) Description of avoidance of this chapter and 219.7 for the activity including raw sightings data and the measures/requirements that were in identified in § 219.1(a) shall be renewed event-specific total counts of animals place at the time of the strike and what or modified upon request by the present, counts of reactions according to additional measures were taken, if any, applicant, provided that: a three-point scale of response severity to avoid strike; (1) The proposed specified activity and numbers of takes (differentiated by (vii) Environmental conditions (e.g., and mitigation, monitoring, and species and age class), the distance at wind speed and direction, Beaufort sea reporting measures, as well as the which a pinniped is disturbed and the state, cloud cover, visibility) anticipated impacts, are the same as closest point of approach for each immediately preceding the strike; those described and analyzed for these disturbance event; (viii) Estimated size and length of regulations (excluding changes made (E) A written evaluation of the animal that was struck; pursuant to the adaptive management effectiveness of SWFSC mitigation (ix) Description of the behavior of the provision in paragraph (c)(1) of this strategies in reducing the number of marine mammal immediately preceding section); and marine mammal interactions with and following the strike; (2) OPR determines that the survey gear, including best professional (x) If available, description of the mitigation, monitoring, and reporting judgment and suggestions for changes to presence and behavior of any other measures required by the previous LOA the mitigation strategies, if any; marine mammals immediately under these regulations were (F) Final outcome of serious injury preceding the strike; implemented. determinations for all incidents of (xi) Estimated fate of the animal (e.g., (b) For an LOA modification or marine mammal interactions where the dead, injured but alive, injured and renewal requests by the applicant that animal(s) were released alive; and moving, blood or tissue observed in the include changes to the activity or the (G) A summary of all relevant training water, status unknown, disappeared); mitigation, monitoring, or reporting provided by SWFSC and any and (excluding changes made pursuant to

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the adaptive management provision in practicability of the modifications) if (ii) If, through adaptive management, paragraph (c)(1) of this section) that do doing so creates a reasonable likelihood the modifications to the mitigation, not change the findings made for the of more effectively accomplishing the monitoring, or reporting measures are regulations or result in no more than a goals of the mitigation and monitoring substantial, OPR will publish a notice of minor change in the total estimated set forth in the preamble for these proposed LOA in the Federal Register number of takes (or distribution by regulations. and solicit public comment. species or years), OPR may publish a (i) Possible sources of data that could (2) If OPR determines that an notice of proposed LOA in the Federal contribute to the decision to modify the emergency exists that poses a significant Register, including the associated mitigation, monitoring, or reporting risk to the well-being of the species or analysis of the change, and solicit measures in an LOA: stocks of marine mammals specified in public comment before issuing the LOA. (A) Results from SWFSC’s monitoring LOAs issued pursuant to §§ 216.106 of (c) An LOA issued under §§ 216.106 from the previous year(s); this chapter and 219.7, an LOA may be of this chapter and 219.7 for the activity (B) Results from other marine modified without prior notice or identified in § 219.1(a) may be modified mammal and/or sound research or opportunity for public comment. Notice by OPR under the following studies; would be published in the Federal circumstances: (C) Any information that reveals Register within thirty days of the action. (1) OPR may modify (including marine mammals may have been taken § § 219.9–219.10 [Reserved] augment) the existing mitigation, in a manner; and extent or number not monitoring, or reporting measures (after authorized by these regulations or [FR Doc. 2020–27817 Filed 1–14–21; 8:45 am] consulting with SWFSC regarding the subsequent LOAs. BILLING CODE 3510–22–P

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